Massa, J.
Daniel Pierce appeals his convictions for molesting his three young granddaughters, arguing he was entitled to separate trials on the allegations of each individual victim. We are asked to decide whether his offenses were joined not only for being “of the same or similar character” but also because they were based “on a series of acts connected together” under Indiana Code section 35-34-1-9(a)(2). Because we find Pierce’s abuse of girls in his care was sufficiently connected, we hold he is not entitled to new and separate trials. We affirm Pierce’s convictions, and we remand only for the purpose of resentencing on one count.
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Pierce argues he was entitled to a separate trial for each complaining witness pursuant to Indiana Code section 35-34-1-11(a) and thus the trial court erred by denying his motion to sever the charges against him. Under Indiana law:
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.
Ind. Code § 35-34-1-9(a) (2008). But “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.” Ind. Code § 35-34-1-11(a) (emphasis added). In other words, the defendant is not entitled to severance as of right if subsection (9)(a)(2) is met.
Subsection (9)(a)(1) refers to the nature of the charged offenses; subsection (9)(a)(2) refers to the operative facts underlying those charges. These two subsections are not coextensive: offenses that are of the same or similar character may be premised on totally unrelated circumstances and evidence. See 5 Wayne R. LaFave et al., Criminal Procedure § 17.1(b), at 7 (3d ed. 2007) (“Under a provision allowing joinder of offenses ‘of the same or similar character,’ it is permissible to join together several instances of the same crime, such as bank robbery, though they were committed by the defendant at distinct times and places and not as part of a single scheme.”). For example, although a defendant may be charged with multiple burglaries (the same statutory offense), if the burglaries are factually distinct in terms of their timing, victims, method of entry, transport vehicle, and types of items taken, they fit squarely under subsection (9)(a)(1) but not (9)(a)(2), and severance is available as a matter of right. Maymon v. State, 870 N.E.2d 523, 526–28 (Ind. Ct. App.), clarified on reh’g, 875 N.E.2d 375 (Ind. Ct. App. 2007). In some instances, of course, crimes that are of the same or similar character may also be based a series of connected acts. See, e.g., Jameison v. State, 268 Ind. 599, 601, 377 N.E.2d 404, 406 (1978) (“In the case at bar the burglaries were of service stations on I-74 in Shelby County. In both entry was gained by breaking a window and radios were stolen. Thus the crimes charged undoubtedly constituted a series of connected acts.”), abrogated on other grounds, Mitchell v. State, 535 N.E.2d 498 (Ind. 1989).
To determine whether offenses warrant joinder under subsection (9)(a)(2), we ask whether the operative facts establish a pattern of activity beyond mere satisfaction of the statutory elements. It is well-settled that a common modus operandi and motive can sufficiently link crimes committed on different victims. Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind. 1997). In Craig v. State, the defendant molested two young girls in a strikingly similar way, by asking them to take a “taste test,” covering their eyes with tape, inserting his penis into their mouths, and instructing them to suck on it. 730 N.E.2d at 1264–65. And his common motive—“to satisfy [his] sexual desires”—further tied the crimes. Id. at 1265. Because “[those] similarities [were] sufficient to establish that the molestation of each victim was the handiwork of the same person,” the defendant had no absolute right to severance. Id.
But establishing the defendant’s unique method of committing the crimes is not the exclusive way of showing his acts are connected together. Offenses can also be linked by a defendant’s efforts to take advantage of his special relationship with the victims. E.g., Turnpaugh v. State, 521 N.E.2d 690, 692 (Ind. 1988) (finding child molestation charges were connected together where the victims were two young sisters who were overnight guests of the defendant); Booker v. State, 790 N.E.2d 491, 495 (Ind. Ct. App. 2003) (finding child molestation charges were connected together where the defendant was hired to care for the two young victims). Our Court of Appeals found such a connection where a Child Protective Services caseworker met two teenage boys through his work. Heinzman v. State, 895 N.E.2d 716, 719 (Ind. Ct. App. 2008). The defendant forced one of the boys to perform oral sex, and he inappropriately touched the other, resulting in various sex offenses. Id. He had no right to separate trials because the offenses were joined on the basis that he “abused his position as a caseworker to perpetuate his child molesting scheme.” Id. at 721.
A common relationship between the defendant and the victims may even result in an interconnected police investigation into the crimes, producing overlapping evidence. Blanchard v. State, 802 N.E.2d 14, 25 (Ind. Ct. App. 2004) (finding crimes were connected where the death of one of defendant’s sons was discovered during the investigation into the neglect of the other). In Philson v. State, for instance, the defendant was charged with various offenses for molesting his younger brother in a bathroom and raping his older sister in a closet. 899 N.E.2d 14, 16 (Ind. Ct. App. 2008). Although the crimes were committed in different ways against different victims, they were connected together because both were “against his siblings in the same house over the same period, 2005–2006” and the “allegation with respect to the rapes of [his sister] surfaced in the course of the investigation into the molestations of [his brother].” Id. at 17.
We find the incidents here share much more than their criminal category. Pierce wasn’t charged with four unconnected child molestations; they were connected by his victims, his method, and his motive. Just like the caretaker in Booker and the caseworker in Heinzman, Pierce exploited his position of a trusted grandfather or great uncle by molesting young female family members in his care. The investigation into allegations made by K.P. in her interview led police to identify additional victims. Indeed, much of the evidence overlaps, as the various caretakers testified to their observations of Pierce’s inappropriate behavior toward the girls. And Pierce’s method was consistent. He invited each granddaughter to spend the night at his home, when no other children would be present. He touched all four girls’ breasts or vaginas with his hands, attempting to use his mouth on the vaginas of the two youngest girls. Regarding his motive, as in Craig, Pierce’s activity toward all four girls was driven by his aim to fulfill his sexual desires.
We decline to require separate trials as of right where the defendant committed the same crime, in substantially the same way, against similar victims. Because Pierce’s criminal acts were sufficiently connected together, he was not entitled to severance.
Rush, C.J., and David, J., concur.
Rucker, J., concurs in result with separate opinion in which Dickson, J., concurs:
The question presented, as is the question in most cases involving motions to sever, is whether the offenses were joined “solely” because they are the same or similar in character. Unless the State otherwise concedes the point, it will always protest, “of course not,” the offenses were not joined “solely” on that ground. Instead “other factors were present.” And so it goes here and the majority agrees. I concur in the result reached by the majority but only because it is not inconsistent with several cases decided by this Court as well as our Court of Appeals. I continue to believe, however, “our traditional approach in resolving claims of severance fails to provide meaningful guidance to either the bench or the bar, and thus lends itself to inconsistent results, even where the facts are very similar.” Wells v. State, 983 N.E.2d 132, 137 (Ind. 2013) (Rucker, J., dissenting from the denial of transfer). Employing our “traditional approach” [footnote omitted] the Court of Appeals in a divided opinion concluded the trial the court erred when it denied Pierce’s motion to sever. Pierce v. State, No. 78A05-1305-CR-211, 2014 WL 288998, at *5 (Ind. Ct. App. Jan. 27, 2014), vacated. Employing the same approach this Court has reached the opposite conclusion. Unfortunately we continue down this path of inconsistency. We would be well-advised to provide greater clarity to an area of the law that remains in a state of confusion.