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.
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[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.
Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1980 | February 28, 2018 Page 2 of 6
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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