Martin v. State

968 N.E.2d 873

Richard Dean MARTIN, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 10A05–1110–PC–526.

Court of Appeals of Indiana.

June 1, 2012.

Appeal from the Clark Superior Court; The Honorable Vicki L. Carmichael, Judge; Cause No. 10D01–1102–PC–44.

Stacy R. Uliana, Bargersville, IN, Attorney 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MEMORANDUM DECISION—NOT FOR PUBLICATION

MATHIAS, Judge.

Richard Dean Martin was convicted of six counts of Class A felony child molesting in Clark Superior Court and sentenced to an aggregate term of fifty years incarceration. After his convictions were upheld on direct appeal, Martin filed a petition for post-conviction relief, which the post-conviction court denied. Martin appeals and presents two issues, which we restate as: (1) whether the post-conviction court clearly erred in concluding that Martin was not denied the effective assistance of trial counsel, and (2) whether the evidence was sufficient to support Martin's convictions.

We affirm.

Facts and Procedural History

The facts underlying Martin's convictions were set forth in our memorandum decision on Martin's direct appeal:

In 2004, Martin began living with C.C. and her three children, which included eight-year-old S.G. Over the next three years, Martin repeatedly molested S.G. Two or three times per month, Martin would enter S.G.'s bedroom late at night and kiss S.G.'s breasts or vagina and rub his penis on her face, neck, shoulders, and vagina. Each molestation lasted about ten to fifteen minutes.

Martin and C.C. ended their relationship in November of 2006, and in February of 2007, S.G. told her mother about the molestations. C.C. informed the Clark County Sheriff's Department, which, in turn, informed the Indiana Department of Child Services (“DCS”). The DCS sent investigator Chris Yarbrough to interview C.C., S.G., and Martin. Yarbrough informed Martin of S.G.'s allegations, and Martin's response “was very firm that [S.G.] doesn't lie.” While Martin did not admit the allegations to Yarbrough, Martin did acknowledge to Yarbrough that S.G. had “hunched” on Martin's penis one night when he was in bed with her, and that that “activity went on for approximately one minute and he noted ... that he probably could have stopped that activity sooner than he did.” Yarbrough made a report based on those interviews and submitted that report to the Clark County prosecutor.

The State charged Martin with six counts of Class A child molesting. The State alleged that Martin had molested S.G. in the fall of 2004, in the winter of 2004, in the winter of 2005, in March of 2006, in the summer of 2006, and in November of 2006. On August 14, 2008, Martin filed a motion to suppress “any and all statements made by the Defendant to Chris Yarbrough” on the grounds that those statements were “taken from him in violation of his state and federal constitutional and due process rights, including ... Miranda warnings.” The trial court denied Martin's request.

At the ensuing jury trial on August 19, the State introduced into evidence Yarbrough's and S.G.'s testimony, as well as the testimony of the arresting officer. Yarbrough testified that S.G. had detailed to him numerous molestations by Martin and that those molestations had occurred “three times per month over the entire period they lived together.” Martin objected to that testimony on hearsay grounds, but the trial court overruled the objection. Yarbrough also testified as to Martin's comments during their interview, which Yarbrough stated he “consider[ed] to be a partial admission of guilt to the allegations.” Martin objected “pursuant to the motion that we had filed,” but, again, the trial court overruled Martin's objection. And S.G. likewise testified about the various times Martin had molested her. Martin objected to her testimony “on ... 404(b)” grounds, which the trial court overruled.

At the close of trial, the court reviewed the final jury instructions with the parties and gave each side the express opportunity to object to any of the instructions. Martin did not object to any of the final instructions. The court then instructed the jury “that the defendant may be convicted of Child Molesting solely on the uncorroborated testimony of the victim [and that the State] is not required to present evidence to corroborate the testimony of the victim.” The jurors were then sent to deliberate, but about ten minutes later the jury requested to hear S.G.'s testimony. S.G.'s testimony was about an hour and ten minutes in length. After hearing the testimony, the jury returned to deliberations. “Within minutes,” the jury found Martin guilty as charged. The trial court entered its judgment of conviction accordingly.

Martin v. State, No. 10A01–0812–CR–568, slip op at 1–2 (Ind.Ct .App. Aug. 20, 2009) (record citations omitted), trans. denied.

Following his September 24, 2008 sentencing hearing, Martin filed a motion to correct error claiming that the jury had been improperly instructed that the uncorroborated testimony of the victim was sufficient to support a conviction. The trial court denied this motion, and Martin appealed. On direct appeal, Martin claimed that the trial court committed fundamental errors by: (1) admitting evidence regarding uncharged acts of molestation against the victim, (2) admitting Yarbrough's testimony that Martin stated that the victim did not lie, and (3) instructing the jury that the uncorroborated testimony of a victim was sufficient to support a guilty verdict. Id., slip op. at 2. We concluded that the admission of the uncharged acts was harmless error, that Martin's statement was admissible as the statement of a party opponent, and that the jury instruction was not fundamental error because the victim's testimony was not wholly uncorroborated. Id., slip op. at 3–11.

On February 26, 2010, Martin filed a petition for post-conviction relief, and the post-conviction court held a hearing on this petition on April 11, 2011. The post-conviction court issued findings of fact and conclusions of law denying Martin's petition on September 7, 2011. Martin now appeals.

Post–Conviction Standard of Review

Post-conviction proceedings are not “super appeals” through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002). Rather, post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002). A post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). On appeal from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643–44.

Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we cannot affirm the judgment on any legal basis, but rather, must determine if the court's findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind.Ct.App.2011), aff'd of reh'g,947 N.E.2d 962. Although we do not defer to the post-conviction court's legal conclusions, we review the post-conviction court's factual findings under a clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge the credibility of witnesses, and we will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Id.

Ineffective Assistance of Trial Counsel

Martin contends that the post-conviction court clearly erred in denying his claim of ineffective assistance of trial counsel. Our supreme court summarized the law regarding claims of ineffective assistance of trial counsel in Timberlake v. State as follows:

A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel's representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. The two prongs of the Strickland test are separate and independent inquiries. Thus, [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.

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