Johnus L. Orr v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 23, 2018
• Docket: 77A04-1608-CR-1923
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Feb 23 2018, 8:27 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

James T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Johnus L. Orr, February 23, 2018

Appellant-Defendant, Court of Appeals Case No. 77A04-1608-CR-1923 v. Appeal from the Sullivan Superior Court. The Honorable Hugh R. Hunt, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 77D01-1501-MR-137

Darden, Senior Judge

Statement of the Case [1] Tiffanie Adams and her unborn child were found dead in a cornfield, in

Sullivan County, Indiana, fifty-five days after their initial disappearance. Cell

phone records, along with other evidence, implicated Johnus Orr, Tiffanie’s Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 1 of 45 stepbrother, in the crimes. Johnus was charged, tried, and convicted of the

murders of both Tiffanie and her unborn child, and he was sentenced to an

aggregate term of 120 years imprisonment. He appeals, arguing erroneous

admission of evidence, failure to give a proposed jury instruction, insufficient

evidence, double jeopardy violations, and sentencing violations. We affirm.

Issues [2] Johnus presents the following issues:

I. whether the trial court abused its discretion in admitting certain evidence; II. whether the trial court abused its discretion in refusing his tendered jury instruction on voluntary manslaughter as a lesser included offense of murder; III. whether there was sufficient evidence to sustain his convictions; IV. whether his convictions violated the double jeopardy clause of the Indiana Constitution; V. whether the trial court abused its discretion in sentencing him; and VI. whether his sentence is inappropriate in light of the nature of the offenses and his character.

Facts and Procedural History [3] Johnus and Tiffanie were stepsiblings. At the time of the crimes, Christina Orr,

Tiffanie’s mother, was married to Johnus’s father, Brian Orr. Prior to her

marriage to Brian, Christina had been married to Bruce Adams. Bruce was not

Tiffanie’s biological father but he married Christina around the time that Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 2 of 45 Tiffanie was born, and he assumed the responsibility and role as Tiffanie’s

father. Bruce’s home and Brian and Christina’s home were within walking

distance such that Brian and Christina’s home could be seen from Bruce’s

backyard. Brian and Christina had developed a strained relationship with

Bruce, Christina’s ex-husband. Also, there was bad blood between the Orr

family and Paul Artem McHenry, Tiffanie’s ex-boyfriend and the biological

father of her unborn child. During the summer of 2013, Johnus had threatened

several times to kill or harm Tiffanie, her father Bruce, and Paul.

[4] At the time of the murders, Tiffanie was eight months pregnant and living in 1 Vincennes with her most recent boyfriend, Donald Barron. On November 5,

2014, around 9:00 a.m., Bruce picked up Tiffanie and Donald in Vincennes and

drove them to his home in Sullivan. Tiffanie wanted to pick up some baby

clothes from individuals who lived in Sullivan.

[5] Shortly after dropping off Tiffanie and Donald at his home, Bruce left to

complete an errand. After Bruce left, Tiffanie told Donald that she was going

to her mother’s (Christina’s) house to see if her mother had some pain pills.

Tiffanie was addicted to prescription pain pills. Tiffanie had her cell phone

with her when she left for her mother’s home.

1 Donald Barron was not the biological father of the unborn child. A prior boyfriend, Paul Artem McHenry, was the biological father of Tiffanie’s unborn child.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 3 of 45 [6] According to Donald, when visiting Christina in the past, Tiffanie never stayed

longer than a few minutes at her mother’s home. When Tiffanie did not return

after about thirty minutes, Donald called her cell phone from Bruce’s land-line

phone, but Tiffanie did not answer. When Bruce returned home and learned

Tiffanie had gone to Christina’s home, he called Tiffanie’s cell phone several

times without receiving an answer.

[7] That same morning, on November 5, 2014, Johnus had prearranged to drive

Katrina Fish (then Katrina Savage) to her job in Linton as a favor to her then

boyfriend (later, husband), James “Jim” Fish. Jim, who worked at the Vead-

Dodd Sawmill in Sullivan, had made the arrangements with Johnus the day

before, on November 4, 2014. They agreed that Johnus would first drive Jim to

work at the sawmill using Jim’s Chevrolet Blazer vehicle (Blazer), then drive

back to Sullivan to pick up Katrina and drive her to Linton, and then later

return the vehicle to Jim at the sawmill.

[8] Johnus dropped off Katrina in Linton sometime between 7:30 and 7:45 a.m.

He then drove back to his home in Sullivan that he shared with his wife, Amber 2 Orr. According to Amber, Johnus left their home around 11:15 a.m. in the

Blazer, to go to the sawmill to pick up Jim, who would then drive Johnus back

home during Jim’s lunch break. Amber expected Johnus back home by 11:35

or 11:40 a.m.

2 Amber Orr filed for divorce in November 2015.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 4 of 45 [9] Johnus and Amber shared a single cell phone. On November 5, 2014, Amber

had possession of the cell phone at their home.

[10] When Johnus had not arrived at the sawmill by 11:30 a.m., Jim sent a text

message to his girlfriend, Katrina, asking if she had seen Johnus. Katrina

responded that Johnus had dropped her off in Linton and left. Jim then sent a

text message to the cell phone that Johnus shared with Amber. At 11:50 a.m.,

Jim texted Katrina again and provided her with the following information he

had received from Amber: “Amber said [Johnus] isnt [sic] [at home] [sic] she

has his phone and she is going to look for him.” State’s Exhibit A15.

[11] At 11:56 a.m., Amber received a text message from a phone number that she

did not recognize. She later learned the text message was sent by Johnus from

Tiffanie’s cell phone. The text message stated: “JUST GOT TO PHONE [sic]

BLAZER NOW BROKE DOWN ON WAY [sic] TELL JIM SORRY.”

State’s Exhibit A19, p. 12. Three minutes later, Amber received another text

message from Tiffanie’s cell phone: “DID YOU GET MESSAGE?” Id.

Amber responded by text at 12:00 p.m., asking, “WHO IS THIS?” Id. At

12:01 p.m., Amber received a third text message from Tiffanie’s cell phone

stating: “JONAS [sic] DUH [F***] N BLAZER BROKE DOWN.” Id.

Amber texted at 12:02 p.m.: “NOPE DIDN’T GET MESSAGE [sic] WHERE

U AT.” Id. The fourth text message sent from Tiffanie’s cell phone, at 12:03

p.m., stated: “WELL HEADED TO JIM’S WORK [sic] IT DIED ON ME.”

Id.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 5 of 45 [12] At 12:03 p.m. Amber received a fifth text message from Tiffanie’s cell phone

that stated: “JUST TOLD JIM HIS BLAZER BROKE DOWN.” Id. A sixth

text message was received at 12:05 p.m. with the following message: “TELL

HIM BOUT [sic] TO HEAD THAT WAY [sic] DAMN THING DIED

GOING DOWN ROAD [sic] B THERE SOON GOTTA GIVE PHONE

BACK.” Id. At 12:06 p.m., Amber texted the following to Tiffanie’s cell

phone: WELL WHERE U AT IM [sic] ON GOLF CART LOOKING FOR 3 YOU.” Id. At 12:07 p.m., Amber received the following seventh text message

from Tiffanie’s cell phone: “JUST HEAD HOME [sic] B THERE N FEW

BABY [sic] WAS ON BACK ROAD TO LAKE WAY I ALWAYS TAKE.”

[13] Amber responded by text at 12:08 p.m. the following: “OK I TOLD HIM US

[sic] WAS ON UR WAY TO HIM NOW.” Id. At 12:08 p.m., an eighth text

message from Tiffanie’s phone to Amber’s phone stated: “OK C U N BIT

HONEY.” Id. Amber then replied by text at 12:10 p.m. the following:

“WHOS [sic] PHONE IS THIS?” Id. At 12:11 p.m., Amber received a ninth

text from Tiffanie’s phone: “DON’T KNOW THEM [sic] MAN AND

WOMAN LET ME TEXT U [sic] GOTTA GIVE BACK NOW SO CAN

LEAVE [sic] MAKIN SURE IT STAYED RUNNIN.” Id.

3 At the time, Johnus and Amber did not own a motor vehicle. They used a golf cart as their means of transportation.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 6 of 45 [14] Around 1:00 p.m. on November 5, 2014, Bruce received three phone calls on

his land-line phone from Tiffanie’s cell phone. When Bruce answered the first

call, he heard a man’s voice in the background before the call was disconnected.

When he answered the second call, he did not hear anything; however, the

second call was also disconnected. When Bruce answered the third call, he

again heard a male voice yelling in the background. Bruce testified that, during

one of the phone calls he “heard commotion” and Tiffanie’s voice saying, “dad,

dad.” Tr. Vol. IV, p. 161. Bruce then placed approximately ten calls to

Tiffanie’s cell phone. All of his calls to Tiffanie’s cell phone were routed to

voicemail. The last recorded use of Tiffanie’s cell phone was an outgoing call

to her mother’s (Christina’s) phone placed at 1:26 p.m. on November 5, 2014.

[15] Johnus arrived at the sawmill in the Blazer around 1:30 p.m. Johnus told Jim

that the Blazer’s engine had “died”, and he had tried everything to fix it. Tr.

Vol. V, p. 56. Johnus then used Jim’s cell phone to call Amber. The call was

placed at 1:31 p.m. Johnus told Amber he had arrived at the sawmill and asked

her to pick him up in their golf cart. Johnus walked approximately one-half

mile east, away from the sawmill. Amber picked him up at the intersection of

County Road 75 East and County Road 300 North in Sullivan County.

[16] Later that same afternoon, Johnus and Amber went to Brian and Christina’s

home. An action-activated deer hunting camera was mounted on Brian and

Christina’s front porch. Bruce was at his home and saw Johnus and Amber

arriving at Brian and Christina’s home. Bruce testified that he saw Johnus and

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 7 of 45 Amber later that afternoon tinkering with something on Brian and Christina’s

front porch.

[17] The next day, on November 6, 2014, Brian contacted Johnus and told him that

the removable memory card was missing from his deer hunting camera. Johnus

and Amber returned to Brian’s home and installed a replacement memory card

in the camera.

[18] Tiffanie was reported missing on November 7, 2014. Law enforcement efforts

to locate her were unsuccessful. Tiffanie’s body was eventually discovered on

December 30, 2014, by two Sullivan County farmers, in a field where they were

belatedly harvesting corn. Her body had decomposed, and animals had

disturbed it. A red fleece jacket was knotted around Tiffanie’s neck, and a leaf

was found within the knot. Tiffanie’s cell phone was not found with her body.

[19] The pathologist conducted an autopsy on December 31, 2014, and determined

that the cause of Tiffanie’s death was ligature strangulation. At the time of her

death, Tiffanie had in her system ethanol at a level of .024 percent, as well as

Benadryl. Her body had sustained a broken rib from an unknown cause. The

pathologist determined that the fetus Tiffanie carried was viable and,

essentially, suffocated due to Tiffanie’s death.

[20] Sullivan County Sheriff Clark Cottom interviewed Johnus about the murders

on December 31, 2014, and on January 20, 2015. At the first interview, Johnus

claimed that he last saw Tiffanie in September 2014, at the Dollar General store

where a family dispute arose and the police were called to the scene. Johnus

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 8 of 45 told Sheriff Cottom that on the day Tiffanie went missing, he had dropped off

Katrina in Linton, using Jim’s Blazer, and then drove back toward the sawmill.

According to Johnus, Jim’s Blazer broke down near County Road 300 North

and County Road 75 East, about one mile from the sawmill. Johnus told the

sheriff that he had flagged down a car with two strangers in it who offered to

“jump” the Blazer. The strangers allowed him to use their cell phone so that he

could contact his wife, Amber. Johnus stated that he sent a text message to

Amber using the strangers’ cell phone. After restarting the Blazer, he allowed it

to idle for a few minutes. He then returned the cell phone to the strangers and

drove directly to the sawmill. He indicated that the encounter with the

strangers lasted approximately twenty minutes. Johnus told the sheriff that

when he arrived at the sawmill, he then asked to borrow Jim’s cell phone. At

that point, he called Amber and told her where to pick him up.

[21] The sheriff drove his patrol car from the location where Jim’s Blazer had

allegedly broken down to the sawmill and estimated that it took a little over one

minute to cover the distance. Although Tiffanie’s cell phone had not been

recovered at the time of the interview, the sheriff knew from cell phone records

obtained from the cell phone service provider that Tiffanie’s cell phone had

been in contact with Johnus and Amber’s cell phone on the day Tiffanie went

missing. At that time, however, the sheriff did not have the word-for-word

content of the text messages sent from Tiffanie’s cell phone.

[22] On August 27, 2015, Tiffanie’s cell phone was found in Lake Sullivan,

approximately one-half mile from where Johnus told Sheriff Cottom the Blazer

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 9 of 45 had broken down on the day Tiffanie went missing. All of the text messages on

Tiffanie’s cell phone, that were sent on the date of her disappearance, had been

deleted from her cell phone when it was found. Later, however, the Indiana

State Police Cyber Crimes Unit was able to recover the deleted messages, word-

for-word.

[23] An Indiana State Police Laboratory forensic scientist examined possible

evidence collected from Jim’s Blazer. The scientist confirmed that red fibers

found in Jim’s vehicle “could have originated from the red fleece jacket” that

was found knotted around Tiffanie’s neck. Tr. Vol. IV, p. 147.

[24] On January 21, 2015, Johnus had been charged with two counts of murder, one

count for Tiffanie’s murder and one count for the murder of her unborn child.

At trial, Federal Bureau of Investigations (FBI) Special Agent Kevin Horan

testified for the State as an expert witness in the area of cell phone records data

analysis. Special Agent Horan testified, over Johnus’s objection, that he

reviewed the call detail records for Tiffanie’s cell phone, and the relevant cell

tower data, and determined that on the day she went missing, Tiffanie’s cell

phone communicated with cell towers near where her body was found and near

where her cell phone was eventually found in the lake.

[25] John Cline, who was incarcerated with Johnus from August 2015 through

February 2016, also testified as a witness for the State. He testified that while

he and Johnus were in jail watching a television show about a cold-case murder

investigation, Cline commented to Johnus that he found it hard to believe that

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 10 of 45 someone could avoid talking about a crime like that for so long. Johnus

responded, “[Y]ou’d be amazed at what you can live with when you have to.”

Tr. Vol. VI, p. 13. Cline further testified that on another occasion, Johnus

indicated that he did not feel sorry about what he did to Tiffanie, but that he felt

badly about the baby. Per Cline, Johnus asked Cline if he (Cline) thought that

God would forgive him.

[26] At the conclusion of the five-day jury trial, Johnus was found guilty as charged.

He was sentenced to sixty years on each murder count, to be served

consecutively. Johnus appeals.

Discussion and Decision I. Admission of Evidence [27] Johnus argues that the trial court abused its discretion in admitting into

evidence the following: 1) expert testimony from FBI Special Agent Horan

regarding cell phone records analysis as related to the relationship and the

location of Tiffanie’s cell phone on the day she went missing, 2) evidence that

suggested Johnus raped certain family members, and 3) Amber’s opinion

testimony regarding Johnus’s guilt.

[28] Wide discretion is afforded the trial court in ruling on the admissibility and

relevancy of evidence. Smith v. State, 730 N.E.2d 705, 708 (Ind. 2000). We

review evidentiary decisions for abuse of discretion and reverse only when the

decision is clearly against the logic and effect of the facts and circumstances.

Id. “A claim of error in the exclusion or admission of evidence will not prevail

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 11 of 45 on appeal unless the error affects the substantial rights of the moving party.”

McCarthy v. State, 749 N.E.2d 528, 536 (Ind. 2001).

A. Expert Testimony

[29] Johnus contends the trial court abused its discretion by permitting the

introduction of expert testimony from Special Agent Horan regarding cell

phone data and records analysis. According to Johnus, the testimony should

have been excluded because the State failed to establish that the testimony

rested upon reliable scientific principles, as required by Indiana Evidence Rule

702. Prior to trial, Johnus filed a motion in limine, seeking to exclude the

testimony. A hearing was held, after which, the trial court issued an order

denying Johnus’s motion. Johnus renewed his objection to the testimony at

trial.

[30] Testifying as an expert witness for the State at trial, Special Agent Horan first

established his credentials. The jury learned that he had been employed by the

FBI for twenty years and that, for the last five years he had been a full-time

member of the Bureau’s Washington, D.C.-exclusively-based Cellular Analysis

Survey Team (CAST). CAST members are trained to review detailed cellular

call records and to interpret and illustrate the cell towers used by a cell phone

during a specified period of time. CAST members initially undergo one month

of extensive training and then must continue to take additional educational

classes thereafter. Per Special Agent Horan, “[o]ur initial CAST certification

school is a month long, as well as additional schools that we have to go to, to

become certified as a cell phone expert.” Tr. Vol. V, p. 138. The CAST Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 12 of 45 members are called upon to train law enforcement around the world regarding

cell phone technology and record analysis. Horan was one of only twelve full-

time members of the exclusive CAST team.

[31] Special Agent Horan testified that he specializes in “what’s called Historical

Records Analysis,” and he explained the analysis as follows:

So that is taking records that are produced by all of our cell phones, by law all of our phones have to create records. So that is all your text message activity, all your voice calls, all your phone calls, data sessions, so that’s the side of your phone that connects with Facebook or email or whatnot. What I can do with those records is I can recreate, for investigations, for courtroom activities, the approximate location of where phones were over a period of time. So we take the records, which in and of themselves are just a bunch of numbers, they don’t say anything, but when I look at them and I interpret them I can tell you a story. I can illustrate for you what happened over a period of time. So in this case I was asked to take these records and to come up with an analysis of what was going on with the phone, where it was approximately during the stated period.

Id. at 133-34. He further explained that CAST members specialize in “Geo

Location, . . . taking record[s] that the [cell] phone produces and we’re trying to

illustrate where the phone could have been during that period of time.” Id. at

139. Special Agent Horan stated that he has been recognized and qualified as

an expert witness for cell phone record analysis in numerous courts.

[32] Special Agent Horan next explained that cell phones are essentially high-speed

radios that communicate with cell towers. He stated that “cell phones do not

talk to each other[,] they only talk to one (1) thing and that is a cell tower and Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 13 of 45 they use radio frequencies to do that.” Id. at 140. Per Special Agent Horan,

most cell towers are designed to cover a 360-degree radius that typically is

divided equally into three separate sectors. Each tower has a unique identifier

that allows cell providers to determine what specific tower a cell phone

communicated with at a particular time. If a cell phone is within the

“footprint” of a particular tower (“the actual coverage area of that cell tower”),

the phone will select that tower for service. Id. at 140, 144. He then discussed a

certain field test he performs, known as a “drive test”, as part of his analysis of

cell phone call records. The test requires:

specialized gear . . . ; it’s a laptop with a scanner and some antennas, and what it does is it measures the signal strength and quality of the [cell] towers it sees. And at the end of the drive test I end up with a footprint of the actual coverage area of the cell tower and that sector. What’s important to have a footprint [sic], is that without it we’re just estimating the area of coverage, how far out those radio frequencies go, where they cover, what they do. But with a drive test I can say for certain these radio frequencies cover this area or they don’t cover this area.

Id. at 144.

[33] Special Agent Horan then testified regarding the cell phone analysis he

performed for the instant case. He was provided by the State with certain

Verizon cell phone call data records associated with Tiffanie’s cell phone. He

created a written report and a PowerPoint presentation to the jury containing

his drive test information, “Range to Tower” data (additional information

provided by a cell phone service provider that can show with greater clarity

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 14 of 45 where a cell phone could have been during a certain period of time), and his

analysis and opinions regarding the call data records from Tiffanie’s cell phone.

Id. at 155. Both the report and the PowerPoint presentation illustrated the

approximate locations of Tiffanie’s cell phone on November 5, 2014, as it

communicated with cell towers by way of calls made to and from Tiffanie’s cell

phone. Based upon his analysis, Special Agent Horan theorized that, around

the time Tiffanie went missing, her cell phone traveled south from the area

where her body was found and then west (in the direction of the sawmill) to the

lake location where her discarded cell phone was later found. Special Agent

Horan testified specifically, as follows:

So, what I was showing you before were three (3) different cell sites, three (3) different sectors that the phone selected during a rather short period of time. So for about a half an hour, a little over half an hour; from 12:53 to 1:26 P.M. So when I look at these records I have to look at it from a much different view because the question I ask is how could the phone have selected three (3) different towers, three (3) different sectors that were significantly apart from one another. Where do they all come together that the phone could have selected all three (3) in the same distance and time? And so what I’ve done here is I’ve focused on an area that happens to be where Miss Adams’ body was found and also where the phone was found. So starting with the first set of calls, tower forty-three (43) this is the area in pink. From 12:53 to 1:00 it’s selecting the area in pink. So it’s possible the phone was moving from west to east. It then selects tower three twenty-eight (328) from 1:01 to 1:16, which is this area here in gray, over here, moving from Sullivan, out to the area where the body was found. Moving south and then west, it then selects tower seventy-eight (78) at 1:23 P.M. ....

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 15 of 45 And then finally it selects tower forty-three (43) again at 1:25 and 1:26 P.M. So again we’re back in the pink. So we have three (3) sectors, all colliding in the same general location. So you’re talking about a short window of time, about a little over a half an hour. The phone was moving, and we know that because it was selecting different towers during that period of time. So how could it have done that, where would it have been where it could have gotten all three (3) signals during that period of time? And so I’ve summarized this, this pattern if you will, in this particular slide. Finally this is where the phone was found, near the bridge back into Sullivan. At 1:[2]6, so this is ten (10) minutes after the phone, the very last phone call that was – outgoing call that was made from the phone . . . .

Id. at 152-53.

[34] The admission of expert testimony is governed by Indiana Evidence Rule 702,

which provides:

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. (b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

Johnus does not claim that Special Agent Horan lacked the necessary

qualifications to analyze and offer opinions regarding the cell phone call

records. Instead, Johnus’s primary contention is that Special Agent Horan’s

testimony was not based upon reliable scientific principles. Johnus also

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 16 of 45 contends that the State offered none of the evidence our Indiana supreme court

has indicated a trial court could consider when determining whether the

challenged evidence was admissible under Indiana Evidence Rule 702(b); that

the State presented no evidence as to known or potential error rates other than

the agent’s concession that the exact location of cell phones cannot be

determined through the procedures he used; that the record contains no

evidence that Special Agent Horan’s theory or technique can be or has been

tested; that the record contains no evidence that the theory underlying the cell

phone location analysis has been subjected to peer review and publication; and

that Special Agent Horan did not prove the source for much of the information

he presented at trial.

[35] However, Special Agent Horan’s testimony does not appear to be based entirely

upon matters of “scientific principles” governed by Indiana Evidence Rule

702(b), but, moreover, rather falls within the area of “specialized knowledge”

and “training” governed by Indiana Evidence Rule 702(a). Our supreme court

has determined that the “specialized knowledge” set forth in Evidence Rule

702(a) is not necessarily scientific knowledge, and it need not be proven reliable

by means of “scientific principles.” Malinski v. State, 794 N.E.2d 1071, 1085

(Ind. 2003). Rather, such evidence is governed only by the requirements of

Rule 702(a), and any weaknesses or problems in the testimony go only to the

weight of the testimony, not to its admissibility, and should be exposed through

cross-examination and the presentation of contrary evidence. Turner v.

State, 953 N.E.2d 1039, 1050 (Ind. 2011).

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 17 of 45 [36] Special Agent Horan testified to specialized knowledge and training about

whether Tiffanie’s cell phone was within the actual coverage area of particular

cell towers at particular times based upon his training, education, and

experience as a twenty-year veteran of the FBI and a five-year member of a

twelve-person team that specializes in cell phone technology and cell phone

records data analysis. His testimony was not based solely upon scientific

principles or rules. During cross-examination, Johnus elicited testimony from

the agent that his opinions were based upon “the best information we have

based upon the limitations of technology,” and that there was no way to know

the exact locations of Tiffanie’s cell phone on the date she went missing. Tr.

Vol. V, pp. 167-68. As such, the requirements of Indiana Evidence Rule 702

were satisfied. We find that the trial court did not abuse its discretion in

allowing Special Agent Horan’s testimony.

B. Rape Evidence

1. Evidence Rules 404(b) and 403

[37] Johnus next argues that the trial court abused its discretion in admitting into

evidence, over his objection, his application for a protective order against 4 Tiffanie; a police report that was generated at the time of his request; and the

voluntary statements that Johnus provided to the Sullivan City Police

Department about matters reflected in the police report. Johnus maintains that

4 The protective order sought by Johnus was never issued.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 18 of 45 the documents contained information that suggested he raped certain female 5 family members.

[38] The essential facts are that on September 5, 2014, Johnus and his then wife,

Amber, met with Sullivan City Police Department Chief Jesse Morin to request

that harassment and false informing charges be filed against Tiffanie and her

mother, Christina. Chief Morin documented the meeting in his police report.

Per the police report, Johnus told Chief Morin (among other things): that

Tiffanie, Christina, and Mary Orr (Johnus’s sister) were harassing him and had

accused him of raping them; that the allegations of rape were false; that “[he

was] not a rapist;” that Tiffanie and Christina had screamed and yelled at him

and called him a rapist; and that he wanted the harassment and false

accusations to stop. Tr. Vol. IV, p. 209. Johnus’s written, voluntary statements

that accompanied the police report reiterated that the allegations levied against

him were false and that he wanted the harassment to stop. He specifically

wrote: “Im [sic] not a rapist[.] I want it all stopped now.” State’s Exhibit A3.

Three days later, Johnus filed an application for a protective order against

Tiffanie on the basis of her allegedly touching him, threatening to harm him,

and harassing him by falsely accusing him of raping her.

5 Johnus also contends the prejudicial information contained in the documents was reintroduced at trial during the State’s direct examination of his then ex-wife, Amber, when the State attempted to elicit testimony from Amber that she divorced Johnus because she believed he murdered Tiffanie. However, Johnus objected and the State abandoned the line of questioning.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 19 of 45 [39] At a pre-trial conference, Johnus moved to exclude the documents from

evidence. The trial court ruled that the evidence was admissible. At trial,

Johnus renewed his objection on grounds that the documents were evidence of

other misconduct. The trial court overruled Johnus’s objection, and the

documents were admitted into evidence. The trial court provided the following

limiting instruction to the jury:

[M]embers of the jury, you are not required to accept anything contained in there as the truth. It’s up to you to decide. . . . I also want to advise you Jurors, and I want you to listen very carefully. I’m going to give you what [sic] called a limine instruction, so please listen very carefully to what I tell you. I’ve allowed this evidence to be introduced at this time, that the Defendant was accused, maybe involved in other, has been accused of other acts, other than the acts that he has been charged with today. This evidence has been allowed in by me for the purpose of ah, addressing or addressed for the issue solely of perhaps the Defendant’s motive or the relationship of the parties here. This evidence should be considered by you only for this limited purpose. You are not to let your mind go and drift into areas of whether or not he did these acts. It’s only for the limited purpose of motive and the relationship of the parties.

Tr. Vol. IV, pp. 212-13.

[40] On appeal, Johnus argues that the admission of the documents into evidence

violated Indiana Evidence Rules 404(b) and 403. Per Johnus, the allegations of

rape contained in the documents “constituted allegations of prior, uncharged

misconduct for which the prejudicial impact far exceeded its [probative] value.”

Appellant’s Br. p. 23. We disagree.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 20 of 45 [41] Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.”

However, the evidence “may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Ind. Evidence Rule 404(b)(2). When

a defendant objects to the admission of evidence on the grounds that it would

violate Rule 404(b), the following test is applied: 1) the court must determine

whether the evidence of other crimes, wrongs, or acts is relevant to a matter at

issue other than the defendant’s propensity to commit the charged act; and 2)

the court must balance the probative value of the evidence against its prejudicial

effect pursuant to Rule 403. Thompson v. State, 690 N.E.2d 224, 233 (Ind.

1997). “The well established rationale behind Evidence Rule 404(b) is that the

jury is precluded from making the ‘forbidden inference’ that the defendant had

a criminal propensity and therefore engaged in the charged conduct.” Id.

[42] Here the challenged evidence, specifically, the fact that Johnus sought a

protective order against Tiffanie because she allegedly was harassing him and

accusing him of rape, was not admitted to prove Johnus’s character or that he

was a rapist. The evidence was relevant to show possible proof of motive for

Johnus to murder Tiffanie and her unborn child. See Fry v. State, 748 N.E.2d

369, 372 (Ind. 2001) (evidence of motive always relevant in proof of crime, and

defendant’s prior actions with respect to victim usually admissible to show

relationship between the two).

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 21 of 45 [43] Regarding whether the probative value of the evidence outweighed any unfair

prejudice to Johnus, we find that it does. The incident that led to Johnus

seeking the protective order, as documented in the police report, showed that

according to Johnus, Tiffanie was harassing him and that a hostile relationship

existed between Tiffanie, Christina, and Johnus. The evidence shows that

approximately two months after Johnus and Amber’s meeting at the Sullivan

City Police Department, Tiffanie was murdered. The trial court specifically

instructed the jury that it may consider the evidence only for the limited

purpose of motive or proof of the relationship between Johnus and Tiffanie,

and to not “let your mind go and drift into areas of whether or not [Johnus] did

these acts [alleged in the documents].” Tr. Vol. IV, p. 213; see Duncanson v.

State, 509 N.E.2d 182, 186 (Ind. 1987) (when jury properly instructed, we

presume they followed such instructions). The trial court did not abuse its

discretion in admitting the evidence to the jury regarding the protective order

Johnus had sought against Tiffanie, the police report, and Johnus’s own

voluntary statements therein.

2. Right to Confrontation

[44] Johnus next argues that the admission of the evidence regarding the protective

order, the police report, and his voluntary statement constituted inadmissible

hearsay and violated his right to confront witnesses under the Sixth

Amendment and article I, section 13 of the Indiana Constitution.

[45] The Confrontation Clause of the Sixth Amendment provides in relevant part

that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 22 of 45 be confronted with the witnesses against him.” See Crawford v. Washington, 541

U.S. 36, 42, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177 (“We have held that this

bedrock procedural guarantee applies to both federal and state prosecutions”).

The Confrontation Clause applies to an out-of-court statement if it is

testimonial, the declarant is unavailable, and the defendant had no prior

opportunity to cross-examine the declarant. Id. at 59, 124 S. Ct. at 1369.

Article I, section 13 of the Indiana Constitution provides in relevant part: “In

all criminal prosecutions, the accused shall have the right . . . to meet the

witnesses face to face. . . .”

[46] Johnus voluntarily met with the police chief and provided the alleged facts for

him seeking a protective order against Tiffanie. He now challenges the

admissibility of the evidentiary documents containing the allegations that he

alleges were made by his sister, Mary, that he raped her. He further argues that

these allegations were “testimonial”; that he “never had the opportunity to

cross-examine his sister”; and that because his sister never testified at trial, the

allegations were inadmissible hearsay admitted in violation of his Sixth

Amendment right to confrontation. Appellant’s Br. p. 39. However, Johnus is

mistaken. The evidence that Johnus challenges consists of his own statements,

not statements made by his sister, Mary. Specifically, the police report contains

the following: “Mr. [Johnus] Orr stated a [sic] Christina Orr (step mother) and

Tiffanie Adams (step sister) and Mary Orr (sister) are accusing him of rape . . .

.” State’s Exhibit A3. Johnus’s written voluntary statement provides in

relevant part: “Christina Orr, Tiffanie Adams and Mary Orr are accusing me of

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 23 of 45 rape . . . .” Id. Based upon the foregoing, we fail to find a violation of Johnus’s

right to confrontation under the Sixth Amendment or the Indiana Constitution.

C. Opinion Testimony [47] Johnus’s next argument is that the trial court committed reversible error by

improperly allowing witness opinion testimony in violation of Indiana

Evidence Rule 704(b). The rule states in pertinent part that “witnesses may not

testify to opinions concerning intent, guilt, or innocence in a criminal case; the

truth or falsity of allegations . . . .” Ind. Evidence Rule 704(b).

[48] During Amber’s direct examination, the following testimony was elicited:

[STATE]: [When you were interviewed by the police] on January 20th, 2015, in that interview you stated that you were gonna stand by your husband at that time, you were gonna stand by him. You believed he was innocent, is that correct? [AMBER]: Yes. [STATE]: And you stated that if ah, if at any time you felt that he had killed Tiffanie you would divorce him? [AMBER]: Yes.

Tr. Vol. V, p. 114. Johnus objected as follows:

[DEFENSE]: And Your Honor, I’m gonna object. This is completely irrelevant, immaterial and inappropriate. THE COURT: Where are we going with this Mr. Springer? You make an offer to prove here.

Id. Direct examination continued as follows:

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 24 of 45 [STATE]: You’re divorced now correct? [AMBER]: Yes. [STATE]: And when did you file for divorce? [AMBER]: November of [2015]. [STATE]: And did you want to file sooner? [AMBER]: Yes. [STATE]: And why didn’t you? [DEFENSE]: Your Honor I’m gonna object [sic] this is completely irrelevant. It has no basis – THE COURT: Again, Mr. Springer, I’m gonna ask you where you’re going with this. [STATE]: I have no more questions Your Honor.

Id. at 115. Per Johnus, Amber’s statements at trial violated Indiana Evidence

Rule 704(b) “because they constituted opinions concerning [Johnus’s]

innocence/guilt and the truth or falsity of the allegations against him.”

Appellant’s Br. pp. 41-42.

[49] We find that allowing the continuation of the line of questioning of Amber is

problematic under Rule 704(b). However, upon closer review and considering

the totality of Amber’s testimony, we do not find that it had an adverse impact

upon the jury’s verdict. Johnus’s prompt and continuous objection to the line

of questioning prevented Amber from testifying as to her personal opinion as to

Johnus’s guilt or innocence in the matter. Amber’s limited testimony

constituted approximately one page of testimony in a six-volume transcript and

several days of evidence. The State’s case did not rest on Amber’s answers to

the questions posed by the State. Furthermore, Johnus did not request an

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 25 of 45 admonishment of the jury; and, additional, substantial evidence was presented

at trial that supported Johnus’s guilt. To be reversible, opinion testimony must

prejudice the defendant. Taylor v. State, 689 N.E.2d 699, 706 (Ind. 1997).

Johnus has not shown how his substantial rights were violated, nor was he

prejudiced by Amber’s testimony.

II. Voluntary Manslaughter [50] Johnus contends that the trial court erred in failing to give his tendered

instruction on voluntary manslaughter. Outside of the presence of the jury,

Johnus requested and tendered an instruction on voluntary manslaughter, as a

lesser included offense of murder to be given to the jury. The trial court

declined to give the instruction, explaining in part:

I’ve not heard any evidence with regards to “sudden heat” and because of that I’m not inclined to give that instruction. In fact I think that it would be an error to do that. In essence, there has to be a serious evidentiary dispute between the parties that distinguishes voluntary manslaughter for [sic] murder, “sudden heat.” I’ve not heard any serious evidentiary dispute with regards to that. I’ve not heard any evidence with regards to sudden heat in this matter. I mean there’s been some implications, assertions perhaps, but I’ve not heard that evidence. So therefore I’m not inclined to give that instruction.

Tr. Vol. VI, p. 30.

[51] Voluntary manslaughter is an inherently included offense of murder. It is

murder mitigated by evidence of “sudden heat.” See Ind. Code §§ 35-42-1-1

(2014) (murder) and 35-42-1-3 (2014) (voluntary manslaughter). A

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 26 of 45 voluntary manslaughter instruction should be given if there is “appreciable

evidence” of sudden heat. Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997).

Sudden heat is “anger, rage, resentment, or terror sufficient to obscure the

reason of an ordinary person, preventing deliberation and premeditation,

excluding malice, and rendering a person incapable of cool reflection.”

Washington v. State, 808 N.E.2d 617, 625-26 (Ind. 2004). This standard is an

objective one. See, e.g., Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998) (stating

sudden heat contemplates an ordinary person, not one afflicted with post-

traumatic stress disorder). Words alone are not sufficient provocation.

Matheney v. State, 583 N.E.2d 1202, 1205 (Ind. 1992). We review the refusal to

instruct the jury on voluntary manslaughter for an abuse of discretion.

Washington, 808 N.E.2d at 626. We will not reverse absent a “serious

evidentiary dispute” as to sudden heat. Wilson, 697 N.E.2d at 474.

[52] According to Johnus, the use of Tiffanie’s own jacket as a ligature, “together

with [Johnus’s] ongoing feud with [Tiffanie] over her rape claims and

[Tiffanie’s] desperate search for drugs, suggests that if [Johnus] killed [Tiffanie],

it was the product of sudden heat. Appellant’s Br. p. 47. We disagree.

Although the State’s evidence suggested a possible motive for the murders, that

being the ongoing feud and animosity that existed between Johnus, Tiffanie,

and her family and friends, “[a]nger standing alone is not sufficient to support

an instruction on sudden heat.” Wilson, 697 N.E.2d at 474. In other words, the

record is void of any appreciable evidence of sudden heat to support the giving

of a voluntary manslaughter instruction.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 27 of 45 [53] As a result, there was no evidentiary dispute regarding sudden heat, the

mitigating circumstance that distinguishes voluntary manslaughter from

murder. The trial court did not abuse its discretion in declining to give a

voluntary manslaughter instruction to the jury.

III. Insufficient Evidence [54] Johnus argues that the evidence was insufficient to support his convictions for

the murders of Tiffanie and her unborn child. According to Johnus, “the

State’s purely circumstantial evidence was too conflicting and speculative to

prove [his] guilt.” Appellant’s Br. p. 49. Our standard of reviewing claims

relating to sufficiency of the evidence is well established. On appeal, we do not

weigh the evidence or judge the credibility of witnesses. Banks v. State, 567

N.E.2d 1126, 1129 (Ind. 1991). We consider only that evidence most favorable

to the verdict together with all reasonable and logical inferences to be drawn

therefrom. Id. If there is substantial evidence of probative value to support the

conclusion of the trier of fact, the verdict will not be disturbed. Id. A

conviction of murder may be sustained on circumstantial evidence alone. Green

v. State, 587 N.E.2d 1314, 1315 (Ind. 1992). The reviewing court need not

determine that circumstantial evidence is adequate to overcome every

reasonable hypothesis of innocence, but only that an inference may reasonably

be drawn which supports the finding of guilt. Id.

[55] Orr was charged with knowingly or intentionally killing another human being

and with knowingly or intentionally killing a fetus that had attained viability.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 28 of 45 See Ind. Code § 35-42-1-1. “A person engages in conduct ‘intentionally’ if,

when he engages in the conduct, it is his conscious objective to do so.” Ind.

Code § 35-41-2-2(a) (1977). A person engages in conduct “knowingly” if,

“when he engages in the conduct, he is aware of a high probability that he is

doing so.” Ind. Code § 35-41-2-2(b). A fetus has attained viability when it has

the ability “to live outside the mother’s womb.” Ind. Code § 16-18-2-365

(1993).

[56] In support of his argument, Johnus maintains that he could not have committed

the murders because, among other things, he suffered from severe back

problems; he had no marks on his body that would indicate he engaged in a

struggle with Tiffanie; tire marks from the Blazer that he drove were not found

at the scene of the crime; he was not seen with Tiffanie on the day of her

disappearance; the cell phone records evidence established that he did not

commit the murders; and certain witnesses reported seeing Tiffanie days after

her initial disappearance.

[57] However, the evidence presented at trial showed that on the day she went

missing, Tiffanie, eight months pregnant at the time, left her father’s home and

walked to her mother’s home, located nearby. Irrefutable evidence established

that on that same day, Johnus had possession and use of a vehicle and was

driving to the local sawmill to return the vehicle to the owner and the road to

the sawmill took him past Tiffanie’s mother’s home. Johnus was aware that

Tiffanie was pregnant at the time.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 29 of 45 [58] It is undisputed that between 11:56 a.m. and 12:11 p.m. on the day she went

missing, several text messages originating from Tiffanie’s cell phone were sent

to the cell phone that Johnus and his wife, Amber, shared. At the time the

messages were sent, Amber was at home and had possession of the shared cell

phone. Around 1:00 p.m., three calls were placed from Tiffanie’s cell phone to

her father’s land-line phone. During two of the calls, Tiffanie’s father testified

that he heard a man’s voice in the background, Tiffanie’s voice, and then a

“commotion.” Tr. Vol. IV, p. 161. The last recorded use of Tiffanie’s cell

phone was an outgoing call to her mother placed at 1:26 p.m. Although Johnus

was supposed to arrive at the sawmill before noon, he did not arrive until

approximately 1:30 p.m., claiming car trouble for the delay.

[59] Almost two months later, the bodies of Tiffanie and her unborn child were

found dead in a cornfield. She had been strangled with a red fleece jacket and

her viable, unborn child suffocated inside her womb when she died. The

pathologist who performed the autopsy determined that the fetus was viable,

meaning that it could have survived outside of the mother’s womb. A forensic

scientist confirmed that red fibers found in the Blazer that Johnus was driving

“could have originated” from the fleece jacket wrapped around Tiffanie’s neck.

Id. at 147.

[60] When Johnus was first interviewed by Sheriff Cottom about the murders (on

December 31, 2014), he told the sheriff that he could not have committed the

crime because he did not own a motor vehicle at the time, and that he and his

wife were always together, “day in, day out.” Tr. Vol. V, p. 183. In his second

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 30 of 45 interview with Sheriff Cottom (on January 20, 2015), Johnus admitted to

having access to Jim’s Blazer on the day that Tiffanie went missing, and that at

times during that day, he was not in the company of his wife. Johnus also told

the sheriff that Jim’s Blazer broke down about one mile from the sawmill and

that strangers had stopped to help him. He stated that the strangers allowed

him to use their cell phone so that he could send text messages to his wife,

Amber. On the other hand, FBI Special Agent Horan, who specialized in the

analysis of cell phone records and data, testified that during the time period

between 12:50 p.m. and 1:26 p.m., when the text messages were sent from

Tiffanie’s cell phone to Johnus’s shared cell phone (which was in Amber’s sole

possession at the time), Tiffanie’s cell phone was near the areas where her body

and later her cell phone were found.

[61] Tiffanie’s cell phone was recovered from Lake Sullivan, approximately one-half

mile from the sawmill. All of the text messages on Tiffanie’s cell phone, sent

on the day she went missing, had been deleted.

[62] Even though law enforcement had not revealed certain facts and evidence

uncovered during the investigation of the crimes before conducting their

interviews, when officers interviewed Amber, she told them that Johnus had no

marks on his body, no signs of struggle, and that “[i]f you’re getting choked,

you fight back.” Id. at 105-106.

[63] At trial, John Cline, who was an inmate in the same cellblock as Johnus from

August 2015 through February 2016, testified that Johnus stated he did not feel

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 31 of 45 badly about what he had done to Tiffanie because she had slandered him and

created problems for his family but that he did feel badly for what he had done

to the baby. Cline further testified that Johnus stated “you’d be amazed what

you can live with when you have to” and asked Cline if he thought God would

forgive him (Johnus) for his sin. Tr. Vol. VI, p. 13.

[64] Although there was no eyewitness to the crimes, or confession by Johnus of the

crimes, and no single fact alone that proves Johnus killed Tiffanie and her

unborn child, however, we find that the total of the collective circumstantial

evidence was sufficient to allow a reasonable jury to find that Johnus killed

Tiffanie and her unborn child. Johnus’s arguments to the contrary are merely

invitations for us to reweigh the evidence, which this court cannot do.

See Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (appellate court cannot

reweigh evidence or judge the credibility of witnesses). Sufficient evidence

supports Johnus’s murder convictions.

IV. Double Jeopardy [65] Johnus next contends that his convictions violate the double jeopardy clause of

the Indiana Constitution. Article I, section 14 of the Indiana Constitution

provides that “[n]o person shall be put in jeopardy twice for the same

offense.” Two offenses are the “same offense” in violation of Indiana’s double

jeopardy clause if, with respect to either the statutory elements of the challenged

crimes or the actual evidence used to convict, the essential elements of one

challenged offense also establish the essential elements of another challenged

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 32 of 45 offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). We review de novo

whether a defendant’s convictions violate this provision. See Spears v. State, 735

N.E.2d 1161, 1166 (Ind. 2000) (noting that although our supreme court has not

“expressly ruled” on the standard of review in double jeopardy cases, it

frequently has treated reasonable possibility as a matter of law for de novo

review).

[66] Johnus contends he was subjected to double jeopardy under the “actual

evidence” test. According to Johnus, “the record reflects a reasonable

possibility that the evidentiary facts used by the jury to establish the essential

elements of Murder of the fetus also may have been used to establish all of the

essential elements of Murder of [Tiffanie].” Appellant’s Br. p. 53.

[67] To demonstrate two challenged offenses are the same under the actual evidence

test, a defendant must demonstrate a reasonable possibility the evidentiary facts

used by the fact-finder to establish the essential elements of one offense may

also have been used to establish the essential elements of a second challenged

offense. Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999). We conduct our

analysis by examining the evidence presented at trial to determine whether each

challenged offense was established by separate and distinct facts. Id. There is

no double jeopardy violation when the evidentiary facts establishing the

essential elements of one offense establish only one or even several, but not all,

of the elements of a second offense. Spivey, 761 N.E.2d at 833. Double

jeopardy is not implicated where different victims are involved. See Richardson,

717 N.E.2d at 50, n.40 (“[I]f a defendant is charged with murdering A and

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 33 of 45 murdering B, further inquiry into whether the offenses are the “same offense”

for double jeopardy purposes is not warranted because the charged crimes are 6 different on their face. They involve different victims.”).

[68] Here, there are two separate victims: Tiffanie and her unborn child. Therefore,

we conclude that there is no double jeopardy violation under the actual

evidence theory claimed by Johnus.

V. Abuse of Discretion at Sentencing [69] Johnus next challenges his sentence to consecutive terms of sixty years for each

murder conviction, arguing that the trial court abused its discretion when it

sentenced him. Sentencing decisions are within the sound discretion of the trial

court and are reviewed only for an abuse of that discretion. Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

An abuse of discretion occurs if the decision is clearly against the logic and

effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom. Id. A trial court

may abuse its discretion in sentencing by failing to enter a sentencing statement,

6 Our Courts have repeatedly upheld this principle, finding no double jeopardy violation where there are multiple victims of the same crime. See Bald v. State, 766 N.E.2d 1170, 1172 n.4 (Ind. 2002) (no double jeopardy violation where defendant was convicted of one count of arson and three counts of felony murder based upon three deaths and one bodily injury that arose out of one fire); see also Whaley v. State, 843 N.E.2d 1, 15 (Ind. Ct. App. 2006) (two convictions for resisting law enforcement did not violate double jeopardy even though defendant’s actions involved a single incident of resisting because defendant injured two people as a result of his resistance), trans. denied; Williamson v. State, 798 N.E.2d 450, 456-57 (Ind. Ct. App. 2003) (defendant’s five arson convictions, each of which pertained to a different arson victim, did not implicate double jeopardy), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 34 of 45 entering a sentencing statement that explains reasons for imposing a sentence

which the record does not support, omitting reasons that are clearly supported

by the record and advanced for consideration, or giving reasons that are

improper as a matter of law. Id.

A. Aggravating Circumstances [70] Per its sentencing order, the trial court found the following aggravating

circumstances: 1) the nature and circumstances of the crimes, specifically the

concealment of the crimes for nearly two months, the disposing of Tiffanie’s

cell phone, the abandonment of Tiffanie’s body in a cornfield and exposed to

the elements, and Johnus’s callousness in the commission of the crimes; 2)

Johnus’s criminal history, with emphasis on his prior battery charges and

convictions; 3) the fact that Johnus and Tiffanie were stepsiblings which the

trial court found should have left Tiffanie without reason to believe her

stepbrother would murder her and her unborn child – “especially in light of the

fact, [sic] that by being pregnant she was more vulnerable and less able to fend

off an attack;” and 4) “the victim’s unborn child, who was viable, was

dependent solely on his mother for protection and as such was completely

vulnerable.” Appellant’s App., Vol. V, p. 143. Johnus argues the trial court

abused its discretion in finding aggravators 2, 3, and 4.

1. Criminal History

[71] First, Johnus argues that the trial court abused its discretion by finding his

criminal history to be an aggravating circumstance. In its sentencing order, the

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 35 of 45 trial court determined the following regarding Johnus’s criminal history as an

aggravating factor:

The Defendant has a criminal history, which consists of two (2) juvenile adjudications and twelve (12) adult convictions. As for the twelve (12) adult convictions, two (2) were for the offense of Battery Causing Bodily Harm and two (2) were for Domestic Battery. In addition to said convictions, the Defendant was charged in two (2) other battery cases, with same resulting in dismissals. The most recent battery charge, in 2014, involved allegations of a battery against a girlfriend. In total, the Defendant has been charged six (6) times as an adult for the offense of battery and has received four (4) convictions. The Defendant also has one (1) juvenile adjudication for the offense of battery. In examining the Defendant’s criminal history, the Court does note that his battery charges have graduated from the juvenile offense of battery against law enforcement to batteries against others, including three instances of charges or allegations of battery against women, with two (2) such charges resulting in convictions. The Defendant’s criminal history, with respect to prior charges and convictions for battery, demonstrates that the Defendant is unable to control his anger and his emotions. Moreover, the Court finds that Defendant’s prior contact with police authority and the criminal justice system has not been successful at deterring his unlawful behavior. The Court does consider the Defendant’s criminal history to be an aggravating factor.

Id. at 142. Johnus, specifically contends that the trial abused its discretion by

considering the two dismissed battery charges. He also argues that his criminal

history is “relatively minor and old and, therefore, not a valid aggravating

circumstance.” Appellant’s Br. p. 56.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 36 of 45 [72] The extent, if any, that a sentence should be enhanced based on prior

convictions turns on the weight of an individual’s criminal history. Duncan v.

State, 857 N.E.2d 955, 959 (Ind. 2006). This weight is measured by the number

of prior convictions and their gravity, by their proximity or distance from the

present offense, and by any similarity or dissimilarity to the present offense that

might reflect on the defendant’s culpability. Id. However, “we will not say that

remoteness in time, to whatever degree, renders a prior conviction irrelevant.”

Harris v. State, 272 Ind. 210, 215, 396 N.E.2d 674, 677 (1979). The remoteness

of criminal history does not preclude the trial court from considering it as an

aggravating circumstance. Bowling v. State, 493 N.E.2d 783, 787 (Ind. 1986).

[73] Regarding dismissed charges, Johnus correctly asserts that a record of arrest,

without more, does not establish the historical fact that a defendant committed

a criminal offense and may not be properly considered as evidence of criminal

history. Tunstill v. State, 568 N.E.2d 539, 544 (Ind. 1991). However, our

supreme court has held that “such information may be relevant to the trial

court’s assessment of the defendant’s character in terms of risk that he will

commit another crime,” Ealy v. State, 685 N.E.2d 1047, 1058 (Ind. 1997), and

that prior arrests and pending charges not reduced to convictions are properly

considered as reflective of defendant’s character and indicative of risk of future

crime. See Tunstill, 568 N.E.2d at 545. Our supreme court also has held that

“[c]harges that do not result in convictions may be considered by the sentencing

court in context, but something more than mere recitation unaccompanied by

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 37 of 45 specific allegations should be shown.” McElroy v. State, 865 N.E.2d 584, 591

(Ind. 2007).

[74] Johnus does not dispute the fact that he has had numerous adverse contacts

with the criminal judicial system. Johnus previously was convicted of four

misdemeanor battery causing bodily harm charges, two of which involved

domestic battery. He has one juvenile adjudication for misdemeanor battery on

law enforcement. The trial court used the two dismissed battery charges to

assess Johnus’s character, determining: “[Johnus’s] battery charges have

graduated from the juvenile offense of battery against law enforcement to

batteries against others, including three instances of charges or allegations of

battery against women” and “[Johnus’s] criminal history, with respect to prior

charges and convictions for battery, demonstrates that the Defendant is unable

to control his anger and his emotions.” Appellant’s App., Vol V, p. 142. The

trial court did not abuse its discretion by finding his criminal history to be an

aggravating circumstance.

2. Position of Trust

[75] Johnus next argues that the trial court abused its discretion in finding as an

aggravating circumstance, essentially that, Johnus, as stepbrother, was in a

position of trust with his stepsister, Tiffanie, and that “[t]he victim should not

have had any reason to believe or fear that her own stepbrother would in fact

take her life and that of her unborn child . . . .” Id. at 143. Per Johnus, his

relationship with his stepsister was “too attenuated to constitute an aggravating

circumstance.” Appellant’s Br. p. 58. Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 38 of 45 [76] The position of trust aggravator is often used in the context of the relationship

between an adult and a minor where there is at least an inference of the adult’s

authority over the minor. See, e.g., Kincaid v. State, 839 N.E.2d 1201 (Ind. Ct.

App. 2005) (trial court properly considered defendant’s position of trust with

two-month-old victim as aggravator where defendant had admitted that victim

was his son). However, the position of trust aggravator is not limited to

situations in which an adult has violated a child’s trust. The aggravator has

been applied where an offender violated an adult victim’s trust, where a

defendant had more than a casual relationship with the victim and abused the

trust resulting from that relationship. See, e.g., Cloum v. State, 779 N.E.2d 84

(Ind. Ct. App. 2002) (position of trust aggravator applied where defendant

killed his spouse); Averitte v. State, 824 N.E.2d 1283 (Ind. Ct. App. 2005) (record

supported finding position of trust aggravator where adult stepdaughter helped

murder stepfather).

[77] Here, Johnus and Tiffanie were stepsiblings. The fact that the two had been

feuding around the time that Tiffanie was murdered does not undermine the

intimacy of their relationship. Evidence was presented at trial that Johnus

provided Tiffanie with prescription pills and money; he was concerned about

Tiffanie’s pregnancy; and he and Tiffanie were “really close” in an “odd” way

for stepsiblings – “as if they had something more going on than just a friendly

relationship.” Tr. Vol. V, p. 225. Based upon these facts, we find that the trial

court did not abuse its discretion in finding Johnus’s position of trust as an

aggravator.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 39 of 45 3. Nature and Circumstances of the Crimes

[78] Johnus next challenges the trial court’s finding as an aggravating circumstance

“the fact that the victim’s unborn child, who was viable, was dependent solely

on his mother for protection and as such was completely vulnerable.”

Appellant’s App., Vol V, p. 143. Per Johnus, this circumstance cannot be

aggravating because “it does not offer any basis for distinguishing this case from

any other case of fetus murder.” Appellant’s Br. p. 60. However, our supreme

court has held that “[g]enerally, the nature and circumstances of a crime is a

proper aggravating circumstance. Gomillia v. State, 13 N.E.3d 846, 853 (Ind.

2014) (quoting McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)).

[79] Essentially, Johnus is asking this court to disregard the surrounding facts and

circumstances of his crimes. Tiffanie, who at the time of her death by

strangulation, was eight months pregnant with her unborn child. It is common

knowledge that at the death of a pregnant mother, and without proper medical

assistance, an unborn child in the dead mother’s womb cannot survive. Here,

regarding the nature and circumstances of the crimes, the trial court articulated

that Tiffanie’s unborn child was dependent upon its mother for protection and

was more vulnerable than other potential murder victims. The trial court did

not abuse its discretion when considering the nature and circumstances of the

crimes as an aggravating factor.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 40 of 45 B. Enhanced, Consecutive Sentencing [80] Johnus next argues that the trial court abused its discretion by imposing

enhanced sentences for his murder convictions and then ordering the sentences

to be served consecutively. At the time of Johnus’s crimes, Indiana Code

section 35-50-2-3 (2007) provided that a person convicted of murder faces a

sentencing range of forty-five to sixty-five years, with the advisory sentence

being fifty-five years. At sentencing, the trial court found four aggravating

circumstances and no mitigating circumstances, and the court sentenced Johnus

to enhanced terms of sixty years for each conviction, to be served consecutively.

[81] We first address Johnus’s contention that the trial court erred in imposing

consecutive sentences. “Sentencing decisions rest within the sound discretion

of the trial court and we review them only for abuse of discretion.” Johnson v.

State, 725 N.E.2d 864, 868 (Ind. 2000). “In order to impose consecutive

sentences, the trial court must find at least one aggravating circumstance.”

Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2000). Here, the trial court found

four valid aggravating circumstances. The trial court did not abuse its

discretion in imposing consecutive sentences.

[82] As for Johnus’s contention that the trial court abused its discretion in enhancing

his sentences, we disagree. “Only one valid aggravator is needed to sustain an

enhanced sentence.” Reaves v. State, 586 N.E.2d 847, 852 (Ind. 1992).

Additionally, an enhanced sentence may be imposed where the only

aggravating circumstance is a prior criminal history. Duvall v. State, 540 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 41 of 45 34, 36 (Ind. 1989). As previously noted, the trial court found four aggravators.

No error occurred here.

VI. Appropriateness of Sentence [83] Johnus claims that his 120-year sentence is inappropriate in light of the nature

of the offenses and his character. Indiana Appellate Rule 7(B) provides that we

may revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, we find that the sentence is inappropriate in light of the

nature of the offense and the character of the offender. The defendant bears the

burden of persuading this Court that his sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as

inappropriate turns on the “culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[84] Our supreme court has further explained that “[s]entencing is principally a

discretionary function in which the trial court’s judgment should receive

considerable deference.” Id. at 1222. “Such deference should prevail unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[85] The advisory sentence is the starting point the General Assembly has selected as

an appropriate sentence for the crime committed. Childress, 848 N.E.2d at

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 42 of 45 1081. Here, Johnus was convicted of two counts of murder, a felony, for which

the sentencing range is between forty-five and sixty-five years, with an

advisory sentence of fifty-five years. See Ind. Code § 35-50-2-3. The trial

court sentenced Johnus to sixty years for each count, which is above the

advisory sentence but below the maximum sentence allowed under the statute.

[86] As to the nature of the offense, the facts of this case indicate that Johnus,

knowing that his stepsister, Tiffanie, was eight months pregnant, strangled her

to death with the jacket she wore, causing death-by-asphyxiation of her unborn

child; he left the bodies in a cornfield, exposed to the elements and to animals;

he deleted text messages from Tiffanie’s cell phone and threw her phone into

Lake Sullivan; and he lied to law enforcement about the crimes. We decline to

find that Johnus’s sentence was inappropriate in light of the nature of the

offense.

[87] Regarding his character, Johnus notes that he had a history of employment; he

was married at the time the crimes were committed; he has three children,

including “a now five-year-old son;” and, though he is “not a stranger to the

criminal justice system, . . . his previous encounters have been minor in

comparison to the present prosecution.” Appellant’s Br. p. 62. However,

Johnus’s poor character is reflected in his criminal history. Johnus has one

juvenile adjudication for battery on a law enforcement officer. He has twelve

convictions as an adult, including four prior convictions of misdemeanor

battery causing bodily harm, with two of the four involving domestic battery.

See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (when

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 43 of 45 considering character of offender, one relevant fact is criminal history). His

criminal history shows an escalation in the seriousness of his crimes. See Mills v.

State, 536 N.E.2d 290, 291 (Ind. 1989) (a “pattern of steadily escalating

offenses” justified sentence beyond advisory sentence). Also, regarding his

character, evidence of record indicated that Johnus fed Tiffanie’s prescription

pill habit; he deleted text messages from her cell phone; and the discovery of

Tiffanie’s body was delayed by fifty-five days because he lied to law

enforcement about the crimes. Based upon the foregoing, we cannot say that

Johnus’s sentence was inappropriate in light of his character.

[88] Johnus also argues that his sentence is not appropriate when compared to the

sentence the defendant received in Hicks v. State, 729 N.E.2d 144 (Ind. 2000)

(defendant received sixty-year sentence for murder and feticide arising from

killing of ex-girlfriend and twenty-nine-week-old fetus). However, Rule 7(B)

does not require us to compare Johnus’s sentence with sentences of other

offenders but rather to duly consider the nature of the offenses and character of

the offender before us today.

Conclusion [89] For the reasons stated, we find that the trial court did not abuse its discretion in

admitting evidence, instructing the jury, or sentencing Johnus. There was

sufficient evidence to support Johnus’s convictions; his convictions did not

violate double jeopardy principles; and his sentence is appropriate given the

nature of the offenses and his character.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 44 of 45 [90] Affirmed.

May, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 77A04-1608-CR-1923 | February 23, 2018 Page 45 of 45