Floyd B. Sells v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2018, 10:40 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Robert W. Gevers, II Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Floyd B. Sells, February 28, 2018 Appellant-Defendant, Court of Appeals Case No. 17A03-1708-CR-1980 v. Appeal from the DeKalb Superior Court State of Indiana, The Honorable Kevin P. Wallace, Appellee-Plaintiff Judge Trial Court Cause No. 17D01-1610-FA-1

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018 Page 1 of 6 [1] Floyd Sells appeals his convictions for Class A Felony Rape, 1 Class A Felony

Criminal Deviate Conduct,2 and Class B Felony Child Molesting.3 Sells argues

that the trial court erroneously admitted certain testimony. Finding no error,

we affirm.

Facts [2] On July 9, 1987, Sells married S.O., who had four young children from a

previous marriage: J.B., F.B., P.B.C., and A.B. Sells and S.O. were married

for approximately eleven years. In 1992, when F.B. was eleven and P.B.C. was

nine years old, the family moved to a house on High Street in Garrett (the High

Street House); in 1995, when F.B. was fourteen or fifteen and P.B.C. was

twelve or thirteen, they moved to a house on King Street in Garrett (the King

Street House). [3] Over the years, Sells molested his young stepchildren hundreds of times. The

molestations were frequently accompanied by threats of violence, weapons, and

warnings to keep quiet or the entire family would be killed. Examples of the

frequent incidents include:

• • Around Christmas time in the High Street House, Sells had anal intercourse with twelve-year-old F.B. Sells told F.B. that if he did not allow the act to occur, he would kill F.B.’s family in front of him and

1 Ind. Code § 35-42-4-1. 2 I.C. § 35-42-4-2. 3 I.C. § 35-42-4-3.

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then kill F.B. At the High Street House, Sells sometimes raped F.B. two or three times a week, adding up to over a hundred times when F.B. was twelve to fifteen years old. • In the King Street house, Sells frequently forced F.B. to perform oral sex. On more than one occasion, when F.B. refused, Sells put a shotgun in F.B.’s mouth and threatened to kill F.B., his siblings, and their mother if F.B. refused to perform oral sex. On another occasion, Sells forced F.B. to perform oral sex while Sells held a knife to his neck and threatened to slice his throat. • As F.B. got older, he became stronger and more able to defend against Sells’s advances. But when F.B. defended himself, Sells told him he either had to let his siblings perform the acts on Sells or he would kill F.B. and his siblings. Sells then forced F.B. to choose one of his siblings to go into the room with Sells. • In 1995, Sells bent eleven-year-old P.B.C. over a banister and had sexual intercourse with her, threatening to kill her and her family if she refused. She testified that he raped her so many times and in so many places that she could not remember them all. • In the summer of 1995, five-year-old K.G., who was Sells’s niece, stayed with Sells and his family for the weekend. At some point, Sells put his penis in K.G.’s mouth and then had sexual intercourse with her, threatening to kill her family if she told anyone.

[4] On October 5, 2016, the State charged Sells with Class A felony rape and two

counts of Class A felony criminal deviate conduct, later joining those charges

with another pending action in which Sells was facing a Class B felony child

molesting charge. [5] Sells’s jury trial took place on April 19-20, 2017. F.B., P.B.C., and K.G. (all

now adults) testified regarding Sells’s crimes during their respective

childhoods. During the trial, P.B.C. testified that at some point, she was moved

into foster care because Sells “beat the crap out of [her]” after she stole her

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mother’s wallet. Tr. Vol. II p. 61-62. She also testified that Sells had “given

[her] bloody noses and bloody mouths, but those are nothing.” Id. at 62. Sells

did not object to this testimony. [6] After the State presented its case-in-chief, Sells filed a motion for a directed

verdict. The trial court granted the motion with respect to one of the criminal

deviate conduct charges. At the close of the trial, the jury found Sells guilty of

rape, criminal deviate conduct and child molesting. On July 27, 2017, the trial

court sentenced Sells to consecutive terms of thirty years for rape, thirty years

for criminal deviate conduct, and ten years for child molesting, for an aggregate

sentence of seventy years imprisonment. Sells now appeals.

Discussion and Decision [7] Sells’s primary argument on appeal is that the trial court erred by permitting the

victims to testify regarding the many offenses he had committed over the years

when the State charged him with only one count of rape, one count of child

molest, and two counts of criminal deviate conduct. The admission or

exclusion of evidence is within the trial court’s discretion, and we will reverse

only if the trial court’s decision clearly contravenes the logic and effect of the

facts and circumstances before it or if the trial court has misinterpreted the

law. E.g., Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App. 2012). [8] Sells contends that the admission of the victims’ testimony of multiple rapes

and other sexual assaults during the charged timeframe violated Indiana

Evidence Rule 404(b), which provides that evidence of “other crimes, wrongs,

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or acts is not admissible to prove the character of a person in order to show

action in conformity therewith.” It is well established, however, that Rule

404(b) does not bar evidence of repeated incidents of sex offenses that occurred

within the charged timeframe because such evidence is direct evidence of guilt

of the charged offenses and not evidence of other crimes or wrongs. E.g.,

Marshall v. State, 893 N.E.2d 1170, 1174 (Ind. Ct. App. 2008); see also Baker v.

State, 948 N.E.2d 1169, 1174-78 (Ind. 2011) (finding that so long as jury is

properly instructed on unanimity,4 the State may present evidence of a greater

number of separate criminal offenses than the number charged). [9] Here, the testimony of F.B., P.B.C., and K.G. showed that Sells did, indeed,

engage in the criminal conduct with which he was charged, rather than merely

show that he had the propensity to do so. Consequently, the trial court did not

err by permitting the victims to testify as to Sells’s many sex offenses that

occurred within the timeframe of the charges alleged by the State. 5 [10] Sells also argues that P.B.C. should not have been permitted to testify that Sells

had beaten her for stealing her mother’s wallet and had given her bloody noses

on other occasions. Sells neglected to object to this testimony; therefore, he has

waived the argument. Waiver notwithstanding, even if the admission of this

evidence was erroneous, any error would be harmless in light of the voluminous

4 Sells does not argue that the jury in this case was not properly instructed on unanimity. 5 On the other hand, the trial court properly granted Sells’s motion in limine as to the testimony of at least four uncharged victims under Rule 404(b).

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and compelling evidence supporting Sells’s guilt. Therefore, we decline to

reverse on this basis. [11] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

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