Philson v. State

899 N.E.2d 14, 2008 Ind. App. LEXIS 2573, 2008 WL 5195948
CourtIndiana Court of Appeals
DecidedDecember 11, 2008
Docket71A05-0804-CR-197
StatusPublished
Cited by6 cases

This text of 899 N.E.2d 14 (Philson 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
Philson v. State, 899 N.E.2d 14, 2008 Ind. App. LEXIS 2573, 2008 WL 5195948 (Ind. Ct. App. 2008).

Opinions

OPINION

VAIDIK, Judge.

Case Summary

Brandon Philson appeals his conviction for Class B felony child molesting. Brandon, who was seventeen years old at the time of the alleged offense, was charged in adult court with two counts of rape and three counts of child molesting pursuant to Indiana’s automatic jurisdiction statute, Indiana Code § 31-30-1-4. Rape is enumerated in the statute, but child molesting is not. The child molesting charges, however, were properly joined with the rape charges pursuant to another subsection of the statute. Brandon was ultimately acquitted of both rape charges and two of the three child molesting charges. He argues that once he was acquitted of the rape charges, which are the charges upon which the trial court’s automatic jurisdiction was based, jurisdiction should have vested in the juvenile court. Because Indiana Code § 31-30-1-4 does not provide any mechanism for transferring jurisdiction to the juvenile court if a defendant is acquitted of the offense upon which the adult court’s automatic jurisdiction is based but convicted of a joined offense, we affirm the trial court.

Facts and Procedural History

James and Kimberly Philson are married and have no biological children; however, they have twelve non-biological children, most of whom they have adopted. A.P. (an adult female), Brandon, and M.P. (a male child) are three of their adopted children.

[16]*16In June 2006 the State initiated juvenile proceedings against Brandon for molesting his younger brother, M.P. On July 19, 2006, the State filed an information in St. Joseph Superior Court alleging Count I: Class B felony child molesting (involving M.P.); Count II: Class B felony child molesting (involving M.P.); Count III: Class B felony child molesting (involving M.P.); Count IV: Class B felony rape (involving A.P.); and Count V: Class B felony rape (involving A.P.). Although Brandon was only seventeen years old at the time of the alleged offenses, Indiana Code § 31-30-1-4 vests automatic jurisdiction over juveniles at least sixteen years old in adult court for certain enumerated offenses, including rape, along with any offense that may be joined under Indiana Code § 35-34-l-9(a)(2) with that enumerated offense because it is based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. The following day, the State dismissed the juvenile proceedings.

As for the charges in adult court, Counts I, II, and III allege that “[o]n or between the 1st day of June, 2005, and the 12th day of June, 2006,” Brandon “did perform deviate sexual conduct ... by placing his sex organ on the anus of M.P., a child then under the age of fourteen (14) years, to wit: thirteen (13) years of age.” Appellant’s App. p. 8-9. Count IV alleges that “[o]n or about the 1st day of May, 2005[,] and the 31st day of May, 2005,” Brandon knowingly had sexual intercourse with A.P., a member of the opposite sex, by using force. Id. at 10. Finally, Count V alleges that “[o]n or about the 1st day of May, 2006[,] and the 13th day of June, 2006,” Brandon knowingly had sexual intercourse with A.P., a member of the opposite sex, by using force. Id.

Before trial, Brandon filed a motion to sever Counts I, II, and III, the child molesting charges involving M.P., from Counts IV and V, the rape charges involving A.P., on the ground that the charges were joined in the same information solely because they are of the same or similar character, giving him a right to severance of the charges. The trial court denied the motion. Brandon renewed this motion immediately before trial, and the trial court again denied the motion. A jury trial was then held. At trial, M.P. was fifteen years old and A.P. was twenty-two years old, and both testified against Brandon. Specifically, M.P. testified that Brandon put his penis between M.P.’s buttocks and that Brandon’s penis touched, but did not enter, his anus. M.P. said that this happened on more than one but less than five occasions. M.P. further testified that the first sexual encounter took place in their parents’ bathroom and that it occurred there every time except the last one, when it happened in Brandon and M.P.’s bedroom. A.P. testified that Brandon used physical force to engage in vaginal intercourse with her on two separate occasions inside their parents’ bedroom closet. Brandon was found guilty of Count I, the jury hung on Count II, and he was found not guilty of Counts III, IV, and V. Notably, Brandon was found not guilty of both rape charges. The trial court entered judgment of conviction for Count I and sentenced him to the advisory term of ten years. Brandon now appeals.1

Discussion and Decision

Brandon raises two issues on appeal. First, he contends that the trial court erred in denying his motion to sever the child molesting and rape offenses. Sec[17]*17ond, Brandon contends that once he was acquitted of the rape charges, which are the charges upon which the trial court’s automatic jurisdiction was based, jurisdiction should have vested in the juvenile court.

I. Severance of the Offenses

Brandon contends that the trial court erred in denying his motion to sever the child molesting and rape offenses. Indiana Code § 35-34-l-9(a) is the basis for joining these offenses and 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.

However, Indiana Code § 35-34-l-ll(a) provides for a right to severance of offenses that are joined solely on the ground that they are of the same or similar character:

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, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3)whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

(Emphasis added).

On appeal, Brandon argues that the child molesting and rape offenses were joined solely on the ground that they are of the same or similar character and therefore severance was automatic. The State, on the other hand, argues that the offenses were joined because they are based on a series of acts connected together and therefore severance was within the trial court’s discretion. See Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind.Ct.App.2007) (holding that when a defendant is not entitled to severance as a matter of right, we will review the trial court’s decision under the abuse of discretion standard), trans. denied.

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Philson v. State
899 N.E.2d 14 (Indiana Court of Appeals, 2008)

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Bluebook (online)
899 N.E.2d 14, 2008 Ind. App. LEXIS 2573, 2008 WL 5195948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philson-v-state-indctapp-2008.