Background
Dewitt Hemphill Sr. was tried in a single proceeding on charges involving two children: his seven-year-old granddaughter and an eleven-year-old family friend. The granddaughter alleged one incident in 2015 while she, her grandmother, and Hemphill slept in the same bed. The family friend described a different course of conduct in 2017, including pornography, use of a vibrator, and three acts of intercourse after Hemphill invited her to watch movies and lured her into his bedroom.
The two children did not know each other. Their reports came eight years apart, police investigated them separately, and the State used different witnesses to prove the allegations concerning each child. Before trial, Hemphill asked the Marion Superior Court to sever the two groups of charges so that each victim’s allegations would be tried separately. The court denied the motion and the jury considered eight counts together. It acquitted him on two counts but convicted him on six, leading to an aggregate forty-five-year sentence.
On appeal, Hemphill argued he had an absolute statutory right to separate trials because the offenses were joined only as crimes of the same or similar character. The State answered that severance was discretionary because the allegations reflected connected acts or parts of a single scheme or plan.
The Court’s Holding
The Court of Appeals reversed the convictions and held that severance by victim was mandatory. Indiana Code section 35-34-1-9 allows joinder when offenses are of the same or similar character, or when they arise from the same conduct or a connected series of acts constituting parts of a single scheme or plan. Under section 35-34-1-11, a defendant has a right to severance when joinder rests solely on similarity. Severance is discretionary only when the stronger connection described in the second category exists.
Judge Weissmann rejected the State’s proposed links. The bedroom setting did not establish a common modus operandi—a distinctive method connecting crimes—because Hemphill allegedly used materially different approaches. The granddaughter’s allegation involved a single opportunistic touching during a family sleepover. The family friend described planned isolation, trickery, escalating conduct, and repeated assaults over several weeks. A general position of trust and a motive of sexual gratification were features common to many child-molesting cases, not facts showing one scheme.
The court distinguished an Indiana Supreme Court precedent in which a defendant used substantially the same method against several young relatives and one disclosure led investigators to the other victims. Here, neither investigation produced the other, the victims had no relationship, the reports were years apart, and the proof did not overlap. The charged offenses therefore shared only a similar character. Because the statute made severance mandatory in that circumstance, denial of Hemphill’s motion was error. The court reversed all six convictions and remanded for further proceedings.
Key Takeaways
- Similar charges do not become a single scheme merely because they involve comparable offenses, a position of trust, or the same general motive.
- Courts assessing joinder should compare the defendant’s method, temporal proximity, investigative links, victims’ relationships, and overlap in witnesses and evidence.
- When offenses are joined solely because they are of the same or similar character, Indiana’s severance statute gives the defendant a right to separate trials.
Why It Matters
The opinion gives Indiana trial courts and criminal practitioners a concrete way to distinguish genuine connected conduct from broad thematic similarity. Prosecutors cannot avoid mandatory severance by describing generic features of an offense—such as trust, location, or motive—as a common plan. The connection must appear in operative facts that demonstrate a pattern beyond the statutory elements. Trial courts should make that classification explicitly because it determines whether severance is a right or a discretionary remedy.
Defense counsel should build the severance record around differences in method, timing, victims, investigations, and proof, while prosecutors seeking joinder should identify specific evidentiary overlap and a distinctive linking pattern. A focused pretrial record also gives the appellate court a workable basis for review. The result is significant: improper joinder here required reversal of six serious convictions and new proceedings, underscoring why the statutory classification must be resolved carefully before trial.