Christian N. Gewinner, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Christian N. Gewinner appeals his convictions and sentences for four counts of child molesting as level 3 felonies, performance before a minor that is harmful to minors as a level 6 felony, and possession of child pornography as a level 6 felony. He raises numerous issues on appeal, none of which warrant reversal. We affirm.

Facts and Procedural History

[2] Beginning in 2019 and into the summer of 2020, Gewinner's mother, Lee Ann, babysat her good friend Alicia's children, including twelve-year-old J.S., when Alicia needed help. Lee Ann would watch the children at her house in Huntington County, and twenty-year-old Gewinner “would watch them if Lee Ann wasn't able to.” Transcript Volume III at 167. Although Gewinner would typically watch the children at his mother's house, “there were multiple times he would come out to [Alicia's] trailer and keep an eye on them.” Id.

[3] During this time, J.S. frequently stayed overnight at Lee Ann's house. The agreement between Alicia and Lee Ann was that J.S. would “be sleeping downstairs in the living room.” Id. at 74. However, J.S. would often sleep in Gewinner's room on a futon, and on a few occasions, she slept in bed with Gewinner. J.S. viewed Gewinner as an “older brother figure,” but their relationship changed when he started expressing that he “like[d]” J.S. and thought she “was cool” and “mature.” Id. at 75. J.S. learned that Gewinner had “started going around and telling [J.S.’s] friends that [they] were in a relationship together.” Id. at 77.

[4] One night in the summer of 2020, Gewinner told Alicia that he had become angry at J.S. and felt awful about it so “he wanted [J.S.] to stay the night” at his mom's house. Id. When J.S. was sitting on the futon playing Minecraft in Gewinner's bedroom, Gewinner climbed “on top of J.S. and pinned [her] down and tried to start doing things with [her.]” Id. at 78. Gewinner removed J.S.’s shorts and placed his finger inside her vagina. This made J.S. feel “very disgusting and violated, and very confused.” Id. at 81.

[5] On another occasion, Gewinner and J.S. were alone at Alicia's trailer “watching TV and stuff, and making food” when Gewinner carried J.S. “bridal style” to her bedroom and placed her on the bed. Id. at 84. He was worried about neighbors “spying” on them, so he covered the window with a green blanket and then removed J.S.’s clothes and his own clothes. Id. at 85. Gewinner then tied J.S.’s hands above her head with a belt and inserted his penis into her vagina. Gewinner began “thrusting [his penis] inside of [J.S.]” while she was on her back, and then he moved her to “what they call doggy style.” Id. at 87-88. This made J.S. feel “[d]isgusting” and like she “sincerely wanted to die.” Id. at 88. Gewinner told J.S. that he did not ejaculate inside of her vagina because he “didn't want to get [her] pregnant.” Id. After removing his penis from her vagina, he started masturbating in front of J.S. and eventually ejaculated on her bed.

[6] On “multiple” other occasions, Gewinner asked J.S. to masturbate his penis and to give him oral sex. Id. at 90. During one of those instances, J.S. was sitting on Gewinner's bed “minding [her] business, watching [her] tablet” and he told her to “put the tablet down.” Id. at 91. When J.S. looked over at him, Gewinner had “his penis out and his pants were down.” Id. at 92. Gewinner then grabbed the back of J.S.’s head and “forc[ed] his penis in [her] mouth.” Id. at 92. As he “thrust” his penis in her mouth, he forced her “head up and down.” Id. This felt “[d]ehumanizing” to J.S. Id. Gewinner ejaculated in J.S.’s mouth.

[7] During another occasion at Lee Ann's house, Gewinner “forced” J.S. into the bathroom to take a shower with him. Id. at 93. He “dragged” her by the hand, and she felt like she did not “have a choice.” Id. at 94-95. Gewinner removed both J.S.’s clothes and his own clothes. He then forced her into the shower and positioned her to face the faucet as he stood behind her and “[t]hrusted” his penis “in and out” of her vagina. Id. at 96. This made J.S. feel “[d]isgusting and gross.” Id. at 97.

[8] Following these incidents, J.S. “tried to get [Gewinner] to leave [her] alone” but he started telling her and her family “that he was going to kill himself[.]” Id. J.S. was scared because Gewinner would say things like he had a “demon that followed him and protected him” and other strange claims. Id. at 98. Gewinner was also very controlling of J.S. and would get “really, really, really mad” if she wanted to hang out with friends. Id. at 99. He bought J.S. numerous gifts, including tablets, makeup, posters, and costumes. Alicia became concerned after noticing that Gewinner exhibited controlling behavior toward J.S. Both Alicia and J.S. messaged Gewinner to stop messaging J.S., and when he did not oblige, J.S. “had to block him” so that the communication finally stopped. Id. at 102.

[9] J.S. initially “didn't know how” to tell Alicia about the molestations, but she did confide in her friends A.C. and I.G., as well as I.G.’s mother. Id. I.G.’s mother took J.S. to obtain a pregnancy test because J.S. “was very scared.” Id. at 105. The results of the test were negative, and J.S. decided to talk to Alicia about the sexual abuse. Alicia took J.S. to the police station and a forensic interview was subsequently conducted at McKenzie's Hope.

[10] Police investigated J.S.’s allegations, including collecting bedding from J.S.’s bedroom and conducting DNA testing which confirmed the presence of seminal material belonging to Gewinner. Police also obtained a search warrant for Gewinner's cell phone. Gewinner informed officers “that there would be a substantial amount of pornography on his cell phone” because “he was a student of sex and he enjoyed the art of sex ․ he just liked learning as much as he could about sex, reviewing pornography.” Transcript Volume IV at 79. A review of Gewinner's phone revealed that it contained child pornography.

[11] On January 21, 2021, the State charged Gewinner with five counts of child molesting as level 3 felonies, performance before a minor that is harmful to minors as a level 6 felony, and possession of child pornography as a level 6 felony. The State subsequently dismissed one of the child molesting counts. The court held a hearing on February 19, 2024. Gewinner was present with counsel at the hearing during which the court set his jury trial to begin on August 6, 2024.

[12] On June 28, 2024, Gewinner filed a motion to sever the child pornography charge from the other charges. The court held a hearing on July 1, 2024, during which Gewinner was present with counsel. The court denied the motion to sever, set a hearing on other pending motions, and reminded Gewinner of the August 6th trial date and that he was “required to be here.” Transcript Volume II at 29. When asked if he understood, Gewinner responded, “Yes, sir.” Id.

[13] The court held a hearing on July 23, 2024. Gewinner was present with counsel. The court stated, “I'm going to show that we're still going to go forward as previously scheduled August 6th, 7th, and 8th.” Id. at 44. The court held a final pretrial hearing on August 2, 2024. Gewinner was again present with counsel. At the conclusion of the hearing, the court noted, “I am showing we are still set for trial August 6th, 7th, and 8th. That's Tuesday, Wednesday, and Thursday next week, planning to start at 8:30 each day.” Id. at 142.

[14] The jury trial began on August 6, 2024. Gewinner failed to appear. His counsel was present and stated, “I was notified by the defendant's father that ․ he had gone to pick him up ․ and [Gewinner] was not where he was supposed to be ․ the family doesn't know his whereabouts.” Id. at 145. Gewinner's counsel further indicated that Gewinner had left behind a letter “telling his family goodbye essentially.” Id. Gewinner's counsel moved for a continuance and objected “to trial in absentia.” Id. at 148. The court denied the motion to continue stating, “[t]he defendant's been put on notice as to our trial dates multiple times and I believe he's chosen of his own free will to not be here today, so I am going to deny that request and we will go forward in absentia.” Id. at 149. Gewinner's counsel also renewed the motion to sever, which the trial court denied.

[15] Following the three-day trial, the jury found Gewinner guilty as charged. On December 2, 2024, the court imposed an aggregate sentence of fifty-four years, with thirteen years suspended to probation, for an aggregate executed sentence of forty-one years.

Discussion

A. Motion for Severance

[16] Gewinner asserts the trial court erred in denying his motion to sever the possession of child pornography charge from the child molesting and harmful performance before a minor charges. He claims that he had the “right” to severance, and even assuming he did not, the trial court nevertheless abused its discretion in denying his motion. Appellant's Brief at 19-20.

[17] We begin by noting that two 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. “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). “In other words, the defendant is not entitled to severance as of right if subsection (9)(a)(2) is met.” Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015).

[18] We agree with the State that the offenses here were not joined simply because they were of the same or similar character. Rather, the offenses were based on a series of acts connected together. The police investigation of the molestations of J.S. is what led to the discovery of the child pornography on Gewinner's phone. Moreover, his crimes shared more than their criminal category as they were connected by his type of victim and his alleged motive to fulfill his sexual fantasies. Under the circumstances, we find Gewinner's crimes sufficiently linked together such that we cannot say that he had the right to severance of the charges. See Philson v. State, 899 N.E.2d 14, 17 (Ind. Ct. App. 2008) (finding no right to severance of rape and child molesting charges because the allegation with respect to the rapes of one victim surfaced in the course of the police investigation into the molestations of a different victim and thus the crimes were “sufficiently linked together such that severance was not mandated”), trans. denied.

[19] As for whether the trial court abused its discretion in denying Gewinner's motion for severance, Ind. Code § 35-34-1-11(a) provides:

[T]he court, upon motion of the defendant or the 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.

[20] Rather than arguing that a weighing of these factors suggest severance was warranted, Gewinner argues that joining the possession of child pornography charge to the molestation and harmful performance counts allowed the State to circumvent Ind. Evidence Rule 404(b), which specifies that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” He claims the evidence of his child pornography possession unfairly prejudiced the jury's consideration of the other charges because it created the “forbidden inference” and “stigma that a person that possesses child pornography is also a person that molests children and performs sexual acts in their presence.” Appellant's Brief at 20. We disagree.

[21] We note that this Court has rejected a similar Rule 404(b) claim regarding how we should review a trial court's discretionary denial of a motion for severance under Ind. Code § 35-34-1-11(a). See Vasquez v. State, 174 N.E.3d 623, 631 (Ind. Ct. App. 2021) (noting that neither this Court nor the Indiana Supreme Court has adopted a 404(b)-type analysis when reviewing a denial of a motion for severance), trans. denied. When reviewing the statutory factors outlined above, we observe that the charges against Gewinner were straightforward, posing minimal risk of jury confusion. Gewinner faced only six charges, five of them involving specific sexual acts committed against J.S. and only one of them involving the possession of child pornography, which made the evidence applicable to the possession offense easily distinguishable from the evidence relevant to the other charges. Moreover, the evidence was not overly complex. We cannot say that the court abused its discretion in denying Gewinner's motion for severance.

B. Trial in Absentia

[22] Gewinner next asserts that the trial court abused its discretion in conducting his trial in absentia. Both the Federal and Indiana Constitutions afford defendants in a criminal proceeding the right to be present at all stages of their trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 13. “However, a defendant may be tried in absentia if the trial court determines that the defendant knowingly and voluntarily waived that right.” Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007) (citing Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind.1997)).

When a defendant fails to appear for trial and fails to notify the trial court or provide it with an explanation of his absence, the trial court may conclude the defendant's absence is knowing and voluntary and proceed with trial when there is evidence that the defendant knew of his scheduled trial date.

Id. (quoting Freeman v. State 541 N.E.2d 533, 535 (Ind. 1989)). “The best evidence that a defendant knowingly and voluntarily waived his or her right to be present at trial is the defendant's presence in court on the date the matter is set for trial.” Lampkins, 682 N.E.2d at 1273 (citations omitted).

[23] The record shows that the court repeatedly informed Gewinner of his trial date during multiple pretrial hearings, one of which occurred just days before trial. He never contacted the court prior to his trial to address any confusion he might have had about the trial date, and his counsel did not dispute that he was aware of the trial date or offer any explanation for his failure to appear. Rather, defense counsel indicated that Gewinner was simply absent when his father went to pick him up for trial, and that he had left behind a letter telling his family goodbye. Under the circumstances, the trial court properly concluded that Gewinner's absence was knowing and voluntary. Accordingly, Gewinner waived his right to be present at his trial and we cannot say reversal is warranted.¹

C. Sufficiency of the Evidence

[24] We next address Gewinner's challenge to the sufficiency of the evidence to support his child molesting and performance before a minor that is harmful to minor convictions. He argues that he “is seeking application of the incredible dubiosity rule” because the State “did not present any evidence of sexual activity or touching between Gewinner and [J.S.] other than the testimony of [J.S.].” and “[i]t is this exact testimony that [he] now alleges to be incredibly dubious.” Appellant's Brief at 28.

[25] When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if there exists evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

[26] “Under the incredible dubiosity rule, a court will impinge upon the jury's responsibility to judge the credibility of witnesses only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.” Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002). Application of the incredible dubiosity rule requires that there be: “1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.” Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). “[W]hile incredible dubiosity provides a standard that is ‘not impossible’ to meet, it is a ‘difficult standard to meet, [and] one that requires great ambiguity and inconsistency in the evidence.’ ” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). “ ‘The testimony must be so convoluted and/or contrary to human experience that no reasonable person could believe it.’ ” Id. (quoting Edwards, 753 N.E.2d at 622).

[27] We find the incredible dubiosity rule inapplicable here because none of the required elements have been met. Regarding the first element, J.S. was not the sole testifying witness. Although she was the only testifying witness to the sexual abuse itself, several other witnesses testified, including her younger sister M.S. who testified to instances where she observed Gewinner's sexual interest in J.S. This included testimony that she saw Gewinner “kissing [J.S.] repeatedly,” she saw him “pin [J.S.] on the wall” and kiss her, and she observed Gewinner lying in bed with J.S. Transcript Volume III at 150. As application of this rule has been restricted to cases where there is a single testifying witness, this fact alone renders the rule inapplicable here. See Moore, 27 N.E.3d at 758 (declining defendant's request “to expand the [incredible dubiosity] rule's application to situations where there are multiple testifying witnesses” but going on to consider the other two factors and also finding them lacking).

[28] As for the second element, J.S.’s testimony was not inherently contradictory, equivocal, or the result of coercion. J.S.’s testimony regarding the molestations was consistent and unequivocal. Her testimony was certainly not so convoluted and/or contrary to human experience that no reasonable person could believe it. Moreover, Gewinner points to no evidence to indicate that J.S.’s molestation claims were the result of coercion.

[29] Regarding the third element, the State presented circumstantial evidence to support the convictions. Forensic testing of a blanket from J.S.’s bedroom revealed Gewinner's seminal fluid, which corroborated J.S.’s testimony that sexual activity between herself and Gewinner had occurred and that he had ejaculated on her bed. In sum, none of the required elements of the incredible dubiosity rule are present, and thus the doctrine is inapplicable. Gewinner's challenge to the sufficiency of the evidence to support his convictions based upon the rule fails.

D. Inappropriate Sentence

[30] Finally, Gewinner challenges the sentence imposed by the trial court as inappropriate in light of the nature of the offenses and his character. Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[31] Ind. Code § 35-50-2-5(b) provides that a person who commits a level 3 felony shall be imprisoned for a fixed term of between three and sixteen years, with the advisory sentence being nine years. Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall be imprisoned for a fixed term of between six months and two and one-half years, with the advisory sentence being one year. The forty-one-year aggregate executed sentence imposed by the trial court here is well below the maximum allowable executed sentence for two level 6 and four level 3 felony convictions.

[32] Our review of the nature of the offenses reveals that twenty-year-old Gewinner masturbated in front of and molested (both sexual intercourse and oral sex) a child who he knew was only twelve years old. These acts occurred with force, and during one of the incidents, Gewinner tied his victim's hands above her head with a belt. According to a victim impact statement from J.S., as well as a statement from her mother, these offenses have caused J.S. significant trauma. Gewinner also possessed a considerable amount of child pornography on his cell phone.

[33] Our review of the character of the offender reveals that Gewinner was in a position of trust with J.S. as a childcare giver and “older brother figure.” Transcript Volume III at 75. This reflects very poorly on his character. See Garner v. State, 7 N.E.3d 1012, 1016 (Ind. Ct. App. 2014) (observing that defendant's abuse of his position of trust was demonstrative of his lack of character). As noted by the State, “[a]nother factor that reflects poorly on Gewinner's character is that he twice absconded from Indiana.” Appellee's Brief at 31. The Presentence Investigation Report indicates that, after Gewinner was initially charged in this case, he fled to Tennessee and was charged with being a fugitive from justice and criminal impersonation. Then, shortly before trial, he fled to California and “there was a warrant for his arrest. He was arrested in the state of California and extradited here.” Transcript Volume V at 28.

[34] After due consideration, we conclude that Gewinner has not sustained his burden of establishing that the aggregate sentence imposed by the trial court is inappropriate in light of the nature of the offenses and his character.

[35] Based on the foregoing, we affirm Gewinner's convictions and sentence.

[36] Affirmed.

FOOTNOTES

1.   Gewinner suggests that reversal is warranted because he was never given an opportunity to explain his absence after he was “eventually picked up on an outstanding warrant ․ and brought before the trial court[.]” Appellant's Brief at 24. Although it is true that a defendant who has been tried in absentia must be afforded an opportunity to explain his absence and thereby rebut the initial presumption of waiver, this does not require a sua sponte inquiry; rather, the defendant cannot be prevented from offering an explanation. Soliz v. State, 832 N.E.2d 1022, 1029 (Ind. Ct. App. 2005), trans. denied. Here, the record reveals that Gewinner did not offer, and the trial court did not prevent him from offering, an explanation for his absence from his jury trial.

Brown, Judge.

Chief Judge Altice and Judge Tavitas concur. Altice, C.J., and Tavitas, J., concur.