Guthrie v. State

16 N.E.3d 490 (Table)

John V. GUTHRIE, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 45A05–1311–PC–551.

Court of Appeals of Indiana.

July 18, 2014.

Stephen T. Owens, Public Defender of Indiana, Mario Joven, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

FRIEDLANDER, Judge.

John V. Guthrie appeals the denial of his petition for post-conviction relief (PCR) following his conviction for two counts of child molesting, one as class A felony and the other as a class C felony. Guthrie contends the trial court erred in rejecting his claims of ineffective assistance of trial and appellate counsel.

We affirm.

The facts underlying Guthrie's convictions were set out by this court in an unpublished memorandum decision affirming his convictions on direct appeal. Those facts are as follows:

Guthrie and his ex-wife Christine had three children: S.G., who was born in 2002, A.G., who was born in 2003, and H.G., who was born in 2004. Guthrie and Christine divorced in 2008, and Christine was awarded primary custody of the children. Guthrie had visitation every other weekend and one night during the week.

On July 4, 2008, the children spent the night at Guthrie's house as part of his parenting time. The following day, Christine gave S.G. a bath, and S.G. then went outside to play. Shortly thereafter, S.G. told her mother, “Daddy had sex with me.” Tr. p. 97. At first, Christine did not believe S.G. and admonished her not to say such things about her father. This caused S.G. to cry, and she insisted that she was not lying. Christine called Guthrie that night, but he was drunk and “blew it off.” Tr. p. 101. Christine spoke with S.G. to determine why she would say her father had sex with her. S.G. told her mother that Guthrie “got on top of her,” and that he “bounced” on her, indicating to her genital area. Tr. p. 100. She also said that Guthrie put his “pee-pee” in her mouth, made her suck on it, and “peed” on her. Tr. pp. 100–01. She described Guthrie's penis as looking like a “hot dog” that had hair “at the top.” Tr. p. 102.

The next morning, Christine asked S.G. about the incident again. When S.G. described the incident “everything was still the same,” so Christine took S.G. to the police department. Tr. p. 102. There, S.G. was interviewed by Hammond Police Officer Travis Wheatley (“Officer Wheatley”). S.G. told Officer Wheatley that Guthrie “had sex” with her. Tr. p. 149. She explained that Guthrie made her lie down and “bounced on top” of her. Tr. p. 150. She again stated that Guthrie “peed” on her and stated that “[h]e put his pee-pee in my pee-pee and made me suck on his pee-pee .” Id. S.G. was taken to the hospital and examined, but there were no signs of physical trauma.

On July 9, 2008, S.G. was interviewed by Lake County Police Sergeant John Gruszka (“Sgt.Gruszka”). At first, the child was uncooperative, but she later agreed to talk to Sgt. Gruszka. During this interview, S.G. again stated that Guthrie “did sex” with her, and that Guthrie pushed his “pee pee” on her “pee pee” and that this hurt. Tr. pp. 315–16. S.G. again described Guthrie's penis, and stated that his “pee” was white. Id. at 319.

The underwear and dress S.G. had worn during her visit with Guthrie were later tested at the Indiana State Police lab. No seminal material was found, but amylase was found on one pair of underwear. “Amylase is a digestive enzyme” that “converts starches into sugars” and is found in “saliva and other bodily fluids but [in] especially high concentrations through the digestive tract.” Tr. pp. 228–29. A DNA analysis from the underpants showed a mixture of S.G.'s profile with another individual. Although the DNA from the other individual could not be matched with Guthrie, neither could he be excluded as a possible contributor.

Hammond Police Detective Christopher Matanovich (“Detective Matanovich”) interviewed Guthrie on July 14, 2008. When asked about “what he knew” about the alleged sexual molestation, Guthrie did not directly deny the allegations but did claim that he had caught his son A.G. and S.G. “touching each other.” Tr. p. 198. He denied sleeping with the children and denied that Christine had ever called him about S.G.'s allegations.

The State charged Guthrie with Class A and Class C felony child molestation on July 31, 2008. On January 14, 2010, the State filed a motion to admit S.G.'s videotaped statement under the protected persons statute. The trial court held a hearing on the motion on January 15, 2010, and found S.G. unavailable to testify and further found that the videotaped statement was sufficiently reliable to admit. A jury trial was held [o]n January 19–21, 2010. At the conclusion of the trial, the jury found Guthrie guilty as charged. At a sentencing hearing held on February 26, 2010, the trial court sentenced Guthrie to thirty-five years on the Class A felony conviction and a concurrent term of five years on the Class C felony conviction.

Guthrie v. State, No. 45A03–1003–CR–166, slip op. at 1–2 (Nov. 29, 2010).

On direct appeal, Guthrie argued that the trial court abused its discretion in admitting into evidence the video recording of S.G.'s statement pursuant to the Protected Person Statute (PPS), Ind.Code Ann. § 35–37–4–6 (West, Westlaw current with all legislation of the Second Regular Session of the 118th General Assembly (2014) with effective dates through May 1, 2014). Specifically, appellate counsel argued that the trial court abused its discretion in determining that S.G.'s recorded statement was sufficiently reliable to be admissible pursuant to the PPS. See I.C. § 35–37–4–6(e). This court affirmed Guthrie's convictions, concluding that the trial court had not abused its discretion in determining that S.G.'s statement was sufficiently reliable to be admissible pursuant to the PPS, and that in any event, the admission of the video recording was harmless because it was merely cumulative of statements made by Christine, Officer Travis Wheatley, Sgt. Gruszka, and S.G.'s psychologist, Dr. Kwang Choi.

Guthrie filed his pro se PCR petition on February 7, 2012. The petition was amended by counsel on August 9 and October 17, 2012. In its final form, the PCR petition asserted ineffective assistance of trial and appellate counsel based on numerous alleged errors. A hearing was held on February 19, 2013, at which Guthrie called both his trial and appellate counsel to testify. At the conclusion of the hearing, the postconviction court took the matter under advisement. On October 17, 2013, the postconviction court issued its order denying Guthrie's petition. Guthrie now appeals.

In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134 (Ind.2013). “When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. at 1138 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004) ). In order to prevail, the petitioner must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the post-conviction court's conclusion. Bethea v. State, 983 N.E.2d 1134. Although we do not defer to a post-conviction court's legal conclusions, we will reverse its findings and judgment only upon a showing of clear error, i.e., “that which leaves us with a definite and firm conviction that a mistake has been made.” Id. at 1138 (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000), cert. denied, 534 U.S. 830 (2001) ).

Guthrie argues that the post-conviction court erred in concluding that he was not subjected to ineffective assistance of trial and appellate counsel. A petitioner will prevail on a claim of ineffective assistance of counsel only upon a showing that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the petitioner. Bethea v. State, 983 N.E.2d 1134. To satisfy the first element, the petitioner must demonstrate deficient performance, which is “representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 1138 (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind.2002) ). To satisfy the second element, the petitioner must show prejudice, which is “a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Id. at 1139. “A reasonable probability is one that is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind.2010) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984) ). There is a “strong presumption” that counsel rendered adequate service. Bethea v. State, 983 N.E.2d at 1139. “We afford counsel considerable discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.’ “ State v. Hollin, 970 N.E.2d 147, 151 (Ind.2012) (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001), cert. denied, 537 U.S. 839 (2002) ) (alteration in original). Because a petitioner must prove both elements in order to succeed, the failure to prove either element defeats the claim. See Young v. State, 746 N.E.2d 920 (Ind.2001) (holding that because the two elements of Strickland are separate and independent inquiries, the court may dispose of the claim on the ground of lack of sufficient prejudice if it is easier).

We first address Guthrie's claims regarding his trial counsel. On appeal, Guthrie argues that his trial counsel was ineffective in the following ways: (1) Failing to cross-examine S.G. at the protected...