Chenoweth v. State

35 N.E.3d 317 (Table)

James K. CHENOWETH, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 20A04–1410–PC–465.

Court of Appeals of Indiana.

June 9, 2015.

Stanley F. Wruble III, Matthew J. Anderson, Wruble & Associates, South Bend, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

MATHIAS, Judge.

[1] James K. Chenoweth (“Chenoweth”) appeals the Elkhart Circuit Court's denial of his petition for post-conviction relief.

[2] We affirm.

Facts and Procedural History

[3] In 2009, Chenoweth was convicted of two counts of Class A felony child molesting and ordered to serve an aggregate forty-year sentence in the Department of Correction. Chenoweth appealed his convictions, and facts relevant to the post-conviction proceedings were discussed in his direct appeal:

In 2006, A.S., the victim's mother, dated Chenoweth for approximately three months. During this time, A.S., who suffered from a multitude of mental disorders, routinely allowed Chenoweth to care for the four-year-old victim. J.S., A.S.'s mother, also routinely cared for the victim. Because of her mental disorders, A.S. was considered by J.S. to be developmentally between twelve and fourteen years old.

After A.S. and Chenoweth broke up, they remained friends, and Chenoweth often cared for the victim. A.S. married E.S., and the couple allowed the forty-year-old Chenoweth to move in with them and care for the victim. Indeed, while A.S. was hospitalized for approximately three weeks of mental treatment, Chenoweth spent a considerable amount of time with the victim.

During this time, J.S. observed the victim simulating oral sex with her dolls. When A.S. was released from the hospital, J.S. informed her of the victim's behavior. A.S. was indifferent and told J.S. to mind her own business.

In January or February of 2007, J.S. again observed the victim simulating sexual behavior with the dolls by placing an unclothed male doll on its back and straddling him with an unclothed female doll. J.S. informed A.S. and E.S. of the behavior, but no action was taken.

From March 9–11, 2007, Chenoweth was permitted to watch the victim for three consecutive days at his own residence. On March 13, 2007, Chenoweth again watched the victim, and after Chenoweth had left for the evening, the victim told E.S. that she had pain in her “hoo-hoo,” the term she used for her vagina. E.S. and A.S. inspected the victim and noticed that both the exterior and interior of the victim's vagina were red and cracking “like dried dirt.”

On March 17, 2007, Chenoweth watched the victim while E.S. and A .S. went out for St. Patrick's Day. While at a bar, they discussed the victim's condition with friends, who urged them to take further action. Consequently, E.S. and A.S. left the bar and called the police.

On March 23, 2007, Gayla Konanz, a forensic interviewer with the Child and Advocacy Center (“CAC”) conducted a forensic interview of the victim. During the interview, the victim indicated that Chenoweth had touched her vagina with his finger, had placed his finger inside her vagina, had inserted his penis in her vagina, and had ejaculated after placing his penis in the victim's mouth. The victim also said that Chenoweth had touched her “butt” and that it had hurt. The victim said that Chenoweth had told her not to tell anyone and to keep a secret about his penis or he would go “bye-bye .”

Chenoweth v. State, No. 20A03–0912–CR–566, 930 N.E.2d 1244 (Ind.Ct.App. Aug. 3, 2010), trans. denied (record citation omitted).

[4] Chenoweth appealed his convictions and raised three issues: 1) whether the trial court abused its discretion when it admitted the victim's videotaped forensic interview because “there [was] no sufficient indication of the time frame between the alleged acts of molestation and the date the videotape was made;” 2) whether Chenoweth's trial counsel was ineffective for failing to enter into evidence the transcript of the Protected Person's Statute hearing because the transcript would have shown that the “victim testified that all [Chenoweth] did was touch the outside of her vagina with his finger;” and 3) whether the trial court abused its discretion when it sentenced Chenoweth and whether his forty-year aggregate sentence was inappropriate in light of the nature of the offense and the character of the offender. Id. Our court rejected Chenoweth's arguments and affirmed his convictions and sentence.

[5] On October 5, 2013, Chenoweth filed a petition for post-conviction relief and alleged, in part, that his appellate counsel was ineffective. Specifically, Chenoweth alleged that appellate counsel should have 1) argued that admission of the victim's videotaped statement violated his Sixth Amendment right to confrontation; and 2) argued that his trial counsel was ineffective for failing to argue that the victim was not unavailable to testify at trial.

[6] A hearing was held on Chenoweth's petition for post-conviction relief on March 13, 2014. Only Chenoweth and his mother testified at the hearing.

[7] On August 1, 2014, the post-conviction court issued findings of fact and conclusions of law denying Chenoweth's requested relief. In pertinent part, the court found:

19. In the instant case, Petitioner's first claim is that the trial court committed fundamental error in admitting the child victim's recorded forensic interview over Petitioner's Confrontation Clause objection after finding that the victim was unavailable for medical reasons when the court determined that she would suffer emotional trauma if forced to testify in front of Petitioner at trial despite her ability to do so at the protected persons hearing without losing her ability to reasonably communicate. The Indiana Court of Appeals specifically discussed the foundational requirement provisions of the Protected Persons Statute, and held that the trial court ‘found that the time, content and circumstances of the videotaped interview provided sufficient indications of reliability,” and that there was no error with its admission. To the extent that Petitioner invites the court to reconsider this matter as a freestanding claim of fundamental error, said claim is res judicata and not available as grounds for Post Conviction Relief.

20. Petitioner, however, attempts to raise the aforementioned issue under the umbrella of an ineffective assistance of trial counsel claim. As noted in paragraph 4 herein above, Petitioner already raised the issue of whether his trial counsel was ineffective for not introducing a transcript of the subject video recording at trial and on direct appeal. In the current post conviction proceedings, Petitioner now alleges his counsel was ineffective for failing to object to the trial court's determination that the child victim was not available to testify at trial, and challenging the admission of the video on that basis.

21. Petitioner can not raise a new theory of ineffective assistance of counsel in post conviction proceedings....

22. In the instant case, because Petitioner argued ineffective assistance of counsel on appeal, and the Indiana Court of Appeals decided against him on the merits, res judicata prohibits Petitioner from arguing new grounds for ineffective assistance in post conviction relief.

23. Even if Petitioner's argument was considered on the merits, the record does not support Petitioner's claim that counsel was ineffective for failing to object to the trial court's determination that the child victim was no available to testify at trial. Mari Duerring (“Duerring”) represented Petitioner through the pendency of this Cause, including during the deposition of the child victim, the pre-trial Protected Person's Hearing, and the jury trial. During the Protected Person's hearing, the State presented evidence that the victim, a minor child, was suffering from a medical condition. Specifically, Dr. Allen J. Stuckey, M.D., a board certified physician in both pediatrics and psychiatry, testified that he believed the victim would suffer a severe trauma if forced to testify at trial. Dr. Stuckey further testified that he believed that the victim was suffering from Post–Traumatic Stress Disorder caused by severe trauma and further psychological damage would likely result if she was required to testify at trial. The victim was present at the Protected Persons Hearing, testified, and was cross-examined by counsel for Petitioner. Moreover, at the Protected Persons Hearing, counsel for Petitioner objected to the admissibility of the video recorded forensic interview of the victim on the ground that the same would violate Petitioner's right to confrontation secured by the Sixth Amendment.

24. The trial court took admissibility of the video taped recording under advisement, and on September 29, 2008, issued its confidential Order. That Order provided, in relevant part, as follows:

In this case, the court found that Dr. Stuckey's conclusions concerning the harm which the victim will suffer should she be required to testify at trial are supported by the evidence. Accordingly, the victim is deemed unavailable to testify. Defendant had the opportunity to depose the victim and to cross examine her at the admissibility hearing; therefore, Defendant's constitutional right to confront and cross-examine his accuser has been preserved.

25. During the jury trial in the underlying matter, the State offered the video recording of the victim's forensic interview as evidence. The record establishes that Duerring again objected and argued that admission of the video recorded statement would run afoul of Petitioner's rights under the Confrontation Clause of the Sixth Amendment. The Court, however, ruled that the child victim was unavailable as a witness and the video recording of his forensic interview would be admitted as evidence at trial.

26. It is well established that the Protected Person's Statute, if

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