Daniel Joseph Kriete v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 27 2016, 8:07 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Gregory F. Zoeller Anderson, Indiana Attorney General Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Joseph Kriete, May 27, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1508-CR-1152 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman Appellee-Plaintiff Jr., Judge Trial Court Cause No. 48C03-1411-F4-2003

Mathias, Judge. [1] Daniel Joseph Kriete (“Kriete”) was convicted in Madison Circuit Court of

three counts of Level 4 felony burglary and five counts of Class A misdemeanor

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theft. He was ordered to serve thirty-six years in the Department of Correction.

Kriete appeals and argues that the trial court erred in denying his pre-trial

motion for severance of the charges. [2] We affirm.

Facts and Procedural History [3] In October 2014, Marianne Abney (“Abney”) left her residence in Madison

County, Indiana for a vacation.1 When she returned on October 15, 2014,

Abney noticed that the door between her garage and utility room was broken.

After looking around inside, Abney noted that “all of [her] jewelry had been

taken.” Tr. p. 351. She reported the incident to the police. [4] Sixteen days later, Robin Pickett (“Pickett”) returned home from work with her

daughter on October 31, 2014 around 4:00 p.m. and noticed that her back door

was “wide open.” Tr. p. 454. After entering her home, Pickett discovered that

her television, three laptops, and a couple of HDMI cables were missing.

Pickett immediately called the police to report the incident. [5] Six days after Pickett’s discovery, on November 6, 2014, Kay Krall (“Krall”)

was on vacation with her husband. That same day, Krall’s neighbor, James

Davis (“Davis”) was outside checking his mail and noticed a suspicious vehicle

parked in Krall’s driveway. Davis approached the car and asked the two men

1 All subsequent incidents occurred in Madison County, Indiana.

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inside who they were and why they were there. The driver told Davis that they

were there to do work for Tim Johnson. Davis responded by telling the men

that no one named Tim Johnson lived in the neighborhood and again inquired

why the men were in Krall’s driveway. Without answering Davis’s question,

the men sped away, nearly running over Davis’s toes. Davis was able to write

down the license plate number and called Krall to let her know what had

occurred. [6] Krall then contacted her son-in-law, Peter Hopkins (“Hopkins”), and asked him

to go to her house to look around. Hopkins observed that the back door was

half opened and “just kind of swinging.” Tr. p. 289. Hopkins told Davis that

someone had broken into the house, and Davis called the police. Meanwhile,

next-door neighbor Penny Wilson (“Wilson”) watched a man run through her

backyard carrying a bag. Wilson then saw the man jump into the backseat of a

car that sped away. Officers secured the home because the Kralls were still on

vacation, but after Krall returned, she reported that jewelry and a coin

collection were missing. [7] Later that same day, Beth Manis (“Manis”) returned home from work to find

her back door kicked in and CDs and DVDs scattered all over the living room

floor. Manis later discovered that CDs, DVDs, several pieces of jewelry, an

iPad, a game system, and some games were missing. She notified the police of

the incident.

Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016 Page 3 of 9 [8] Five days later, on November 11, 2014, Timothy Lee, DVM (“Dr. Lee”)

returned home from work around 4:00 p.m. to let his dog outside and was

surprised to find that his front door was unlocked.2 After Dr. Lee went inside

the house, he found that his bedroom had been ransacked and discovered that

several pieces of jewelry, a watch, his wallet, and numerous personal items

were missing. [9] The Anderson Police Department assigned Detective Trent Chamberlain

(“Detective Chamberlain”)3 to investigate all of these Fall, 2014 burglaries. The

first report he received was from the November 6, 2014 incident at Krall’s

home. He then compiled a list of other burglaries in the area to characterize the

method of entry, method of operation, and types of items taken. Detective

Chamberlain discovered that there were five burglaries in the Anderson,

Indiana area that were recent, involved stolen jewelry and electronics, and

involved a door being forced or pried open. [10] Based on the description of the vehicle and the license plate number provided to

police by Davis, Detective Chamberlain discovered that the car was registered

to the father of Michael Showecker (“Showecker”). Officers on the Madison

County Drug Task Force were familiar with Showecker and identified him as a

heroin addict who had been seen driving around a vehicle matching the

2 Dr. Lee stated that his wife left the back door unlocked, so he believed that the intruder entered through the back door and left through the front door. 3 The charging information refers to Detective Chamberlain as “Trent Chamberlin.”

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description of the vehicle that Davis saw at Krall’s residence. Detective

Chamberlain received further information that the same vehicle was parked

behind a local motel and that Showecker was with another man named Michael

Taylor (“Taylor”). After receiving this tip, Detective Chamberlain verified that

the plate number matched the one from the report and checked with the front

desk attendant to determine if a room was registered in either one of their

names. He discovered that a room was registered to Michael Taylor. [11] Detective Chamberlain and Officer William Richardson (“Officer Richardson”)

then knocked on the door of Taylor’s room and found Showecker and Taylor

inside along with several pieces of Krall’s jewelry. After searching the car

parked outside, the officers also found more jewelry that belonged to Krall, as

well as Manis’s iPad. Showecker and Taylor were then arrested. [12] Showecker and Taylor cooperated with the police and indicated that they were

helping appellant Kriete burglarize homes in the area. They told police that they

would sit in the car while Kriete would break in and steal valuables. They also

admitted that they were at Krall’s residence on November 6, 2014 to help

Kriete, that they drove off after they were questioned by Davis, and that they

picked up Kriete “down the road.” Tr. p. 498. Further, Taylor admitted to

pawning several items at a cash for gold shop. The three men split the proceeds,

but Kriete took the largest percentage of profit. [13] The police later discovered that Kriete was staying at an abandoned house and

renting a storage unit in Madison County. While executing a search warrant,

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officers located several stolen pieces of jewelry in the house and items belonging

to Abney, Manis, and Dr. Lee in the storage unit. When Kriete was arrested, he

was wearing Dr. Lee’s watch and carrying his missing wallet. [14] The State charged Kriete with Level 4 felony burglary and Class A

misdemeanor theft on November 14, 2014. On March 31, 2015, the State

amended the charging information to add an additional four counts of Level 4

felony burglary and four counts of Class A misdemeanor theft. Kriete filed a

motion for severance of the charges on May 16, 2015.4 [15] A jury trial was held on June 16-18, 2015. The jury convicted Kriete on all

counts except for Level 4 felony burglary of Abney’s home and Level 4 felony

burglary of Dr. Lee’s home. This amounted to three Level 4 felony burglary and

five Class A misdemeanor theft convictions. A sentencing hearing was held on

July 13, 2015. The trial court ordered Kriete to serve twelve years for each

Level 4 felony burglary conviction consecutive and one year for the five Class A

misdemeanor convictions concurrent in the Department of Correction. His total

sentence was thirty-six years. Kriete now appeals.

4 However, the trial court did not issue an order related to Kriete’s motion for severance, so it was presumed denied as the trial continued with all offenses.

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Discussion and Decision [16] Kriete argues that the trial court erred in denying his pre-trial motion for

severance of charges. He specifically asserts that he was entitled to severance as

a matter of right under Indiana Code section 35-34-1-11(a), which provides:

Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering: (1) the number of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

[17] Although Indiana Code section 35-34-1-22(a) provides severance as a matter of

right in limited circumstances, Indiana Code section 35-34-1-12(b) states:

If a defendant’s pretrial motion for severance of offenses or motion for a separate trial is overruled, the motion may be renewed on the same ground before or at the close of all the evidence during trial. The right to severance of offenses or separate trial is waived by failure to renew the motion.

[18] Here, the trial court denied Kriete’s pre-trial motion for severance. At the close

of the evidence, Kriete failed to renew the motion for severance. As a result, his

right to severance of offenses was waived by failure to renew.

Court of Appeals of Indiana | Memorandum Decision 48A04-1508-CR-1152 | May 27, 2016 Page 7 of 9 [19] Waiver notwithstanding, we will address Kriete’s alternative argument that the

trial court erred in denying his motion, on discretionary severance grounds. If

severance is not a matter of right, Indiana Code section 35-34-1-11(a) provides

in relevant part:

the court, upon motion of the defendant or 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.

We review the trial court’s refusal to sever charges under these circumstances

for an abuse of discretion. Bowser v. State, 984 N.E.2d 236, 239 (Ind. Ct. App.

2013). [20] Here, Kriete was charged with five counts of burglary and five counts of theft.

The State presented evidence for each burglary and theft charge through witness

testimony and photographs of stolen items that were recovered by the police in

various locations that implicated Kriete. None of the evidence was particularly

complex. Further, the court clearly identified each offense and named each

victim in the jury instructions. The jury then convicted Kriete on three counts of

burglary and five counts of theft but acquitted him on two counts of burglary.

This result demonstrates that the jury was able to distinguish the evidence

related to each charge and apply the law intelligently to each offense.

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Accordingly, we cannot say that the trial court abused its discretion in denying

Kriete’s pre-trial motion for discretionary severance. [21] For all of these reasons, we conclude that by failing to renew his motion for

severance before or at the close of evidence, Kriete waived the issue presented

in this appeal. Waiver notwithstanding, we conclude that the trial court did not

abuse its discretion in denying Kriete’s pre-trial motion, on discretionary

severance grounds, either. [22] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

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