Gary Hamby, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Gary Hamby appeals his two convictions of Level 4 felony child molesting.¹ Hamby raises three issues, which we reorder and restate as:

1. Whether the trial court abused its discretion when it denied Hamby's motion to sever the counts against him into three trials – one trial for each of the three children Hamby was alleged to have molested;

2. Whether the trial court abused its discretion when it determined manifest necessity mandated a mistrial over Hamby's objection during his first jury trial; and

3. Whether the trial court abused its discretion when it denied Hamby's request to exercise a peremptory challenge to Juror 17 after Juror 17 had been seated on Hamby's jury.

Because Hamby has not demonstrated the trial court abused its discretion, we affirm.

Facts and Procedural History

[2] On May 16, 2019, the State charged Hamby with three counts of Level 4 felony child molesting. All three counts alleged Hamby “performed or submitted to any fondling or touching, of either the child or himself, with the intent to arouse or to satisfy the sexual desires of either the child or himself.” (Appellant's App. Vol. 2 at 49-50.) Each count involved a different child and slightly different date range – the first count involved A.H., who was Hamby's granddaughter, and alleged molesting occurred between January 1, 2016, and February 6, 2018; the second count involved A.S., who was Hamby's step-granddaughter, and alleged molesting occurred between January 1, 2016, and February 21, 2018; and the third count involved H.S., who lived next door to Hamby and played with his grandchildren, and alleged molesting occurred between January 1, 2016, and February 27, 2018.

[3] On February 23, 2023, Hamby filed a motion to sever the three charges against him into three separate trials. The motion first asserted Hamby was entitled to severance as a matter of right pursuant to Indiana Code section 35-34-1-11(a) because the charges had been joined based only on their being of the same character. In the alternative, Hamby argued application of the three-prong test in Indiana Code section 35-34-1-11(a) would demonstrate “severance is in the best interest of Justice.” (Id. at 134.)

[4] On February 27, 2023, the State filed a motion in limine asking the trial court to prohibit twenty-one different categories of testimony, including:

21. Any questions, comments, testimony, evidence, or references to other sexual behavior by the alleged victim or a sexual predisposition of the alleged victim. Indiana Evidence Rules 412(a)(1), (2); 412(c); and 403.

(Id. at 171.) The trial court granted the State's motion.

[5] On March 14, 2023, the State filed a motion to amend the charging information to add two counts of Level 1 felony child molesting ² based on information that came to light after the initial filing of charges. The fourth count alleged Hamby “knowingly or intentionally performed or submitted to sexual intercourse or other sexual conduct” with A.S. between January 1, 2016, and February 21, 2018. (Id. at 238.) The fifth count alleged Hamby “knowingly or intentionally performed or submitted to sexual intercourse or other sexual conduct” with H.S. between January 1, 2016, and February 27, 2018. (Id. at 239.) Hamby objected to that amendment as untimely, but the trial court granted the State's motion.

[6] On April 4, 2023, Hamby filed an amended motion to sever that asked for separate trials for the charges involving each child. Hamby again argued Indiana Code section 35-34-1-11(a) required severance as a matter of right. The State submitted the forensic interviews of the three victims as evidence in support of a consolidated trial. The trial court thereafter denied Hamby's motion from the bench:

[I]n review of the interviews that were submitted to the Court for review from the State. The Court has made the following findings. The Court finds that the Defense amended motion to sever is denied. And it is denied for the reason that in review of the interviews – that the defendant would employ the same modus operandi in all three (3) of the different alleged victims. He would put them to sleep, or put them to bed and then begin massaging or rubbing them on various parts of their body. They all use the language that he would begin rubbing or massaging them․ Also, the Court finds that severance is not appropriate for the reason that A.S. and A.H. also indicated that the Defendant engaged in this kind of behavior when he had taken them to his camper or camping and happened – on at least one (1) occasion in the camper. The Court also finds that H.S. and A.H. that severance is no [sic] appropriate as – A.H. is a witness to the act committed on H.S.

(Tr. Vol. 1 at 173-4) (errors in original). Thereafter, the trial court, at the State's request, dismissed the fourth count, alleging Level 1 felony molesting of A.S.

[7] On June 5, 2023, a jury was empaneled to try Hamby. The State's first witness was A.H. When Hamby was cross-examining her, defense counsel asked A.H. whether she had told the forensic examiner that her uncle also had “inappropriately touched” her. (Tr. Vol. 3 at 45-6.) A.H. responded, “I don't recall.” (Id. at 46.) The prosecutor immediately requested a conference outside the hearing of the jury and moved for a mistrial because “touched ․ inappropriately”³ was the phrase that A.H. had used to reference Hamby's molestations and, therefore, defense counsel's question had implied other sexual contact in violation of the motion in limine's prohibition of evidence falling under Evidence Rule 412. Defense counsel argued that “inappropriate” was not the same as “sexual” and that the question was based on A.H.’s forensic interview. The trial court took a recess to review A.H.’s testimony and consider its options. After that break, the prosecutor asserted defense counsel's argument was not made in good faith because A.H.’s forensic interview contained no reference to an uncle touching A.H. Defense counsel could not direct the trial court to a statement in the interview that supported his question. The trial court granted the motion for mistrial and found both a mistrial was required by manifest necessity and defense counsel's question was asked in bad faith.

[8] On June 12, 2023, the trial court began a second trial for Hamby. A jury was empaneled and heard two days of evidence. After the State's case-in-chief, Hamby moved for a mistrial due to the unavailability of a necessary defense witness. The court granted that mistrial.

[9] On July 24, 2023, the trial court began proceedings for a third jury trial. Following presentation of evidence, the jury found Hamby guilty of Level 4 felony child molesting of A.S. and Level 4 felony child molesting of H.S. The jury was unable to reach verdicts on the other two counts, and the trial court granted a mistrial as to those two counts. Following a sentencing hearing, the court imposed two six-year sentences and ordered Hamby to serve them consecutively in the Indiana Department of Correction.

Discussion and Decision

1. Motion to Sever

[10] Hamby argues the trial court should have granted his motion to sever the charges against him into a separate trial for each alleged victim. Under Indiana law, offenses against different victims may be charged in multiple counts of the same information when they:

(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). Nevertheless, Indiana law also provides a mechanism for a defendant to challenge that joinder:

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. In all other cases 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.

Ind. Code § 35-34-1-11(a).

[11] When a trial court denies a defendant's motion to sever under Section 11(a), our review of its decision depends on why the charges were joined:

Where the offenses have been joined solely because they are of the same or similar character, a defendant is entitled to severance as a matter of right. Ind. Code § 35-34-1-11(a) (2008). The trial court thus has no discretion to deny such a motion, and we will review its decision de novo. But where the offenses have been joined because the defendant's underlying acts are connected together, we review the trial court's decision for an abuse of discretion.

Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015) (internal case citations omitted) (emphasis in Pierce).

[12] On appeal, Hamby does not argue he was entitled to severance as a matter of right;⁴ instead, he argues only that the trial court abused its discretion in denying his motion to sever. (See Appellant's Br. at 57-60.) Hamby insists severance was necessary “to assure a fair determination of guilt or innocence[,]” (id. at 57) (emphasis removed), because “one child's account unfairly bolsters the other child's account.” (Id. at 58.) Hamby argues trial courts should be required to sever charges whenever Evidence Rule 404(b) would prohibit evidence of crimes against other victims from being introduced at trial. He argues that to do otherwise is “to write Evid. Rule 404(b) out of the Rules of Evidence.” (Appellant's Br. at 59.) In support, Hamby cites a dissent from the denial of transfer in which Justice Rucker argued a defendant should receive a severance under Indiana Code section 35-34-1-11(a) if evidence of crimes against other alleged victims would violate Evidence Rule 404(b). (Appellant's Br. at 59) (citing Wells v. State, 983 N.E.2d 132, 139 (Ind. 2013) (Rucker, J., dissenting from the denial of transfer)). While Justice Dickson concurred with Justice Rucker's dissent from the denial of transfer, the remainder of our Indiana Supreme Court denied transfer, and as such, Justice Rucker's dissent has no precedential weight.

[13] Instead, we consider whether the trial court abused its discretion in light of the number of offenses alleged, the complexity of the evidence, and the jury's ability to distinguish the evidence and law for each offense. Ind. Code § 35-34-1-11(a). Hamby faced four charges – one involving A.S., one involving A.H., and two involving H.S. Each child testified and was cross-examined. The jury found Hamby guilty of only two of the four counts – which indicates the jury was able to distinguish the evidence and consider the charges separately. We accordingly hold the trial court did not abuse its discretion by denying Hamby's motion to sever. See, e.g., Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct. App. 2007) (when three charges involved two children, evidence was not complex, and jury convicted defendant of some, but not all, alleged molestations, defendant had not demonstrated trial court abused its discretion by denying motion to sever), trans. denied.

2. Manifest Necessity

[14] Hamby also argues the trial court subjected him to double jeopardy when it permitted him to be tried after it granted a mistrial over his objection during his first jury trial. When a trial court grants a mistrial over the defendant's objection, the mistrial operates as an acquittal that bars further prosecution, unless the mistrial was required by “manifest necessity.” Jackson v. State, 925 N.E.3d 369, 373 (Ind. 2010), reh'g denied.

A “manifest necessity” exists when, “the ends of public justice would otherwise be defeated” by continuing the trial, through either jury bias or prejudice. This standard does not require that the mistrial be “necessary” in a “strict literal sense,” given “the difficulty in measuring jury bias.”

Garnes v. State, 231 N.E.3d 239, 244 (Ind. Ct. App. 2024) (internal citations omitted), trans. denied.

[15] Herein, the trial court explicitly determined a mistrial was required by manifest necessity. (Tr. Vol. 3 at 65.) On appeal, we review a trial court's determination of manifest necessity for an abuse of discretion. Jackson, 925 N.E.3d at 373. We also give “the highest degree of respect” to the trial court's assessment of the likelihood that jurors’ impartiality might have been impacted by an improper comment. Garnes, 231 N.E.3d at 244 (quoting Jackson, 925 N.E.3d at 373).

[16] At Hamby's first trial, the State's first witness was A.H. When Hamby was cross-examining her, counsel asked A.H. whether she had told the forensic examiner that her uncle had “inappropriately touched” her. (Tr. Vol. 3 at 45-6.) This was the same phrasing that A.H. had used to reference molestation by Hamby. See supra n.2. In its ruling from the bench, the trial court explained:

The Court has taken steps to avoid this type of situation. That's why we have a specific conference on the parties Motion in Limine. The Court has also taken sufficient time here today to adequately reflect upon the situation. The Court has spent over an hour after that comment was made – again doing research and spending time in chambers contemplating what had happened. The Court also notes that the evidence in this trial has just begun. This is still the first witness. It is on this particular date that we are still very early on here in the trial process. The Defense has asked the witness who is also one (1) of the alleged victims, ‘Do you remember the first time, when you were talking to the lady, that she asked if anybody ever inappropriately touched you, that you told her that your uncle did.’ This statement by defense counsel is in violation of the order in limine. And also, in violation of Rule 412. It does not fall within any of the exceptions of Rule 412. Court makes this finding – for the reason, at least one of the reasons being that the defense used the exact same language that this witness used when describing the acts of molest of Mr. Hamby as being touched inappropriately. And the defense asked the same question but this time the question was in reference to a Kid's Talk interview and referencing to her uncle. It is also of particular concern to the Court that defense counsel is not able to point to the genesis of this question. That this statement actually is not something that exists. In the transcript it doesn't exist that the witness made the statement. That her uncle had inappropriately touched her. This statement made by defense counsel is what is contemplated by Rule 412. This rule exists because of the potential damages that can be done by these types of statements. The Court now makes the determination that there is a high degree of likelihood that the impartiality of one (1) or more of the jurors may have been affected by this improper commit [sic]. Again, over this past hour and now more, almost an hour and a half, the Court has considered alternative solutions. Limiting instructions, admonishments to the jury, striking the statement from the record, and has concluded that none would be adequate as the damage has been done. The Court now makes an explicit finding of manifest necessity as to the granting of the State's motion for mistrial. A mistrial is now declared.

(Tr. Vol. 3 at 63-5) (errors in original). After further argument from counsel, the trial court also explicitly found “that the statement and the question was made in bad faith. There is no basis for the question. The defense has had multiple opportunity [sic] to point to the genesis of that question. The reason that it was asked. And has been unable to do so.” (Id. at 68.)

[17] Hamby argues the trial court had to misinterpret the meaning of “inappropriate” to determine that the question violated Evidence Rule 412, because not all inappropriate touches are sexual. (Appellant's Br. at 41.) Hamby is correct that – in the abstract – “inappropriate” is not exclusively a synonym of “sexual.” Compare inappropriate, Webster's Third New Int'l Dictionary (C&G Merriam Co. 1976) (indicating inappropriate means not appropriate, unbecoming, or unsuitable), with sexual, id. (indicating sexual means “of or relating to the sphere of behavior associated with libidinal gratification”). In the context of this case, however, in which “inappropriate” had been the word A.H. used to testify about molestation by the defendant, counsel's use of the word “inappropriate” strongly implied that A.H. had also talked to the forensic interviewer about sexual touching involving her uncle.

[18] Hamby also argues the question his counsel asked “fell outside the ambit of Evid. R. 412” because he was trying to prove what A.H. said in the interview, not whether touching occurred with the uncle. (Appellant's Br. at 39.) Even if we give counsel the benefit of the doubt and presume he was not trying to prove that A.H. had engaged in sexual touching with her uncle, we cannot say the trial court abused its discretion in determining a mistrial was required by manifest necessity. Counsel's question implied that A.H. also reported that her uncle had molested her and, as the trial court explicitly found, there was absolutely no justification for that implication in the transcript of A.H.’s forensic interview. Hamby has not demonstrated an abuse of discretion in the trial court's determination that a mistrial was required by manifest necessity. See, e.g., Pavey v. State, 764 N.E.2d 692, 701 (Ind. Ct. App. 2002) (holding “trial court was in the best position to assess the possible impact of” counsel's mischaracterization of evidence in opening statement and affirming finding of manifest necessity for mistrial when trial court discussed issue with parties, relistened to statement, and carefully considered available options before declaring mistrial), trans. denied.

3. Peremptory Challenge

[19] Finally, Hamby argues the trial court abused its discretion when it denied his request to exercise a peremptory challenge to Juror 17 after Juror 17's venire panel had been passed, which placed Juror 17 on Hamby's jury. Indiana law grants criminal defendants five peremptory challenges to jurors. Ind. Code § 35-37-1-3(c). These challenges, which permit potential jurors to be removed without cause, are not constitutionally mandated, but “are an auxiliary tool used to empanel an impartial jury[.]”⁵ Whiting v. State, 969 N.E.2d 24, 29 (Ind. 2012).

[20] Juror 17's jury questionnaire indicated she was a manager for child and family services. When her venire panel was being questioned, neither party asked her about her employment. Juror 17 was accepted on the jury, and then the trial court took a lunch break. After lunch, when the trial court was about to move to the next potential juror panel, Juror 17 informed the trial court that she works with sex abuse victims on a regular basis and that she is very sympathetic to victims in her clinical role. Both defense counsel and the trial court questioned Juror 17, and she testified that she understood the difference between her clinical role and the role of a juror. Hamby moved to strike Juror 17 for cause, but the trial court denied that motion because Juror 17's answers to questions indicated she was unbiased. Hamby then moved to strike Juror 17 with a peremptory challenge, but the trial court denied his motion because it was untimely.

[21] While an accused has a statutory right to peremptory challenges, see Ind. Code § 35-37-1-3, the right is subject to reasonable regulation by the trial court, including the timing of when such challenges must be made during the jury selection process. Wise v. State, 763 N.E.2d 472, 478 (Ind. Ct. App. 2002), trans. denied. Hamby has not demonstrated the trial court abused its discretion by denying his untimely request to exercise a peremptory challenge. See id. at 478-9 & 479 n.4 (holding trial court did not abuse its discretion by denying defendant's request to exercise a peremptory challenge after a juror had already been accepted onto the jury and court had determined juror was not excusable for cause).

Conclusion

[22] The trial court did not abuse its discretion when it denied Hamby's motion to sever the charges into three separate trials, when it found manifest necessity for a mistrial, or when it denied Hamby's untimely motion to exercise a peremptory challenge. Because all of Hamby's arguments fail, we affirm the judgment of the trial court.

[23] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(b).

2.   Ind. Code § 35-43-4-3(a).

3.   For example, on direct examination, the prosecutor asked what Hamby had done that made A.H. “feel uncomfortable” and she responded, “he – touched my thighs very inappropriately and my stomach and my chest.” (Tr. Vol. 2 at 214.)

4.   At trial, Hamby argued he was entitled to severance as a matter of right because the charges were joined only because they were of the same character. The trial court denied his motion in an order that explained:After reviewing the previously submitted interviews the Court finds the defendant employed a similar and consistent modus operandi with all three alleged victims. AH is a witness to [the] act committed on HS. AS and AH indicate the defendant committed the acts in a similar manner. AS and AH are sisters. HS is a friend of AH and the two were often together with Defendant.(Appellant's App. Vol. 3 at 186.) Hamby has not challenged that decision on appeal, (see Appellant's Br. at 57-60), and if he had, the argument would have failed. See Pierce, 29 N.E.3d at 1267 (Pierce not entitled to severance when he took advantage of family members in his care, the evidence of his crimes overlapped across victims, his “method was consistent[,]” and his motive for all allegations was “to fulfill his sexual desires.”).

5.   “[A] constitutionally impartial juror is one who is able and willing to lay aside his or her prior knowledge and opinions, follow the law as instructed by the trial judge, and render a verdict based solely on the evidence presented in court.” Whiting, 969 N.E.2d at 28. “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” Id. at 29 (quoting U.S. v. Wood, 299 U.S. 123, 145-46 (1936)).

May, Judge.

Judges Brown and Pyle concur. Brown, J., and Pyle, J., concur.