Ricker v. State

1

Christian Ricker, Appellant-Petitioner v. State of Indiana, Appellee-Respondent

No. 24A-PC-184

Court of Appeals of Indiana

June 4, 2024

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the St. Joseph Superior Court The Honorable Elizabeth C Hurley, Judge Trial Court Cause No. 71D08-1905-PC-16

ATTORNEY FOR APPELLANT Charles W. Lahey South Bend, Indiana.

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana, Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana.

MEMORANDUM DECISION

CRONE JUDGE.

Case Summary

[¶1] Christian Ricker appeals the post-conviction court's denial of his petition for post-conviction relief (PCR), alleging prosecutorial misconduct and ineffective assistance of trial counsel. We affirm.

Facts and Procedural History

[¶1] In Ricker's direct appeal, the relevant facts were summarized as follows:

In May of 2009, Ricker began a romantic relationship with L.S.'s mother. L.S. was seven years old at the time. Starting in June of 2009, Ricker began spending a few nights a week at their house. On occasion, Ricker watched L.S. and her siblings while L.S.'s mother was at work.

The first inappropriate contact between Ricker and L.S occurred during the summer between L.S.'s third and fourth years in school. Ricker brought her downstairs, sat on the couch next to her, and touched L.S.'s chest over her clothes. The next inappropriate contact occurred later that year after school had started. Ricker rubbed L.S.'s leg and crotch over her clothes while she was sitting on the living room couch. A third incident occurred approximately one month later when Ricker entered L.S.'s bedroom, grabbed her arm, and brought her downstairs to the living room. Ricker removed L.S.'s shorts and underwear, took his own clothes off, placed a "balloon" on his "private part," and had intercourse with her. This lasted for about five minutes before L.S. kicked Ricker, grabbed her clothes, and went to her room. Before she left, Ricker told L.S. that he would hit her if she told anyone. The fourth instance of inappropriate contact occurred approximately one week later. L.S. was in the living room wearing shorts and a tank top. Ricker took his clothes off and removed L.S.'s shorts, placed a "balloon thing" on his "private," and put it inside her. Ricker stopped because L.S.'s mother came home.

On December 23, 2011, L.S. disclosed the sexual abuse to her father's fiancee, Karagh Brennan. Brennan told L.S. it would be investigated. In May of 2012, L.S. opened up to Brennan again and disclosed additional abuse that had not been disclosed the first time.

The investigation involved interviews between L.S. and Carolyn Hahn, an employee with the Child Abuse Service Investigation Education Center. Hahn is a child forensic interviewer at the Center with an undergraduate degree and masters work in elementary education. She has been a forensic interviewer since 1996 and has conducted over 5,000 interviews with alleged child abuse victims. Hahn has been trained in the use of [Child Abuse Accommodation Syndrome], a system of clinical accommodations to help children struggling with child abuse. During Hahn's interview with L.S. on December 29, 2011, L.S. gave a partial disclosure to Hahn regarding her sexual abuse. On or about June 12, 2012, a second interview took place during which L.S. made additional disclosures about her sexual abuse.

On September 24, 2012, the State charged Ricker with three counts of Class A felony child molesting, one count of Class C felony child molesting, and one count of Class D felony intimidation.

Ricker v. State, No. 71A03-1407-CR-266, 2015 WL 2329121, at *1-2 (Ind.Ct.App. May 15, 2015) (citations and footnote omitted).

[¶2] On December 9, 2013, Martin McCloskey (Trial Counsel) entered his appearance for Ricker. Ricker's jury trial was held on April 14 through 17, 2014.

On the first day of the trial, the State moved to dismiss Count 3, the class A felony child molesting count that alleged Ricker had oral sex with L.S. The trial court granted the motion and dismissed the count with prejudice. At the conclusion of the trial, the jury found Ricker guilty of the remaining two counts of class A felony child molesting, class C felony child molesting, and class D felony intimidation.

[¶3] On May 19, 2014, after Ricker was found guilty but before he was sentenced, Charles Lahey appeared as Ricker's new counsel (Sentencing Counsel). That same day, Sentencing Counsel filed an Indiana Trial Rule 60(B) motion for relief from judgment, alleging that L.S. "may have made false allegations of molestation against other men" that the State did not disclose to Trial Counsel even though the allegations were "known to the State, had been investigated by [the State, but had not been] prosecuted." PCR App. Vol. 2 at 85.

[¶4] On July 25, in response to Ricker's Trial Rule 60(B) motion, the State filed an affidavit from Aimee Herring, the deputy prosecutor who had tried Ricker's case. In her affidavit, Deputy Prosecutor Herring stated that she had met with L.S. on multiple occasions and that L.S. did not disclose any allegations of molestation other than those alleged in the charging information for the instant case. She further stated that "no notice was given to [Trial Counsel] . . . of any allegations of other molestations . . . as the State was not aware of any information that would need to be disclosed[.]" Id. at 87.

[¶5] At the sentencing hearing held that same day, the trial court noted receipt of Deputy Prosecutor Herring's affidavit and asked Sentencing Counsel if he was ready to proceed with sentencing. Sentencing Counsel answered in the affirmative. The court did not rule on Ricker's Trial Rule 60(B) motion. The court imposed an aggregate sixty-two-year sentence.

[¶6] On direct appeal, Ricker challenged his convictions on grounds that L.S. presented incredibly dubious testimony that was insufficient to support his convictions and that the admission of testimony concerning Child Abuse Accommodation Syndrome amounted to fundamental error. Another panel of this Court affirmed Ricker's convictions.

[¶7] On May 23, 2019, Ricker filed a PCR petition, raising freestanding claims that the State committed prosecutorial misconduct by (1) failing to disclose exculpatory evidence and (2) attempting to condition the jury during voir dire. Ricker also alleged that Trial Counsel was ineffective in the following ways: (1) eliciting testimony about L.S.'s sister's disclosure of abuse, (2) failing to crossexamine L.S. regarding her prior inconsistent statements, (3) failing to object to the "prejudicial drumbeat repetition" of L.S.'s out-of-court statements to witnesses, and (4) failing to object to vouching testimony. Id. at 42. He also argued that the cumulative effect of Trial Counsel's errors had denied him a fair trial.

[¶8] At the hearing on the matter, held on April 23 and June 4, 2021, Ricker called Deputy Prosecutor Herring and Trial Counsel as witnesses. Following the hearing, the State submitted proposed findings and conclusions.^[1] On October 6, 2023, the post-conviction court issued its order denying relief. This appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

[¶9] Ricker asserts that the post-conviction court erred in denying his PCR petition. "Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b)) cert. denied (2020). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Id. A defendant who files a petition for post-conviction relief "bears the burden of establishing grounds for relief by a preponderance of the evidence." Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017); Ind. Post-Conviction Rule 1(5). Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment:

Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law.

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations, emphasis, and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Hinesley v. State, 999 N.E.2d 975, 981 (Ind.Ct.App. 2013), trans. denied (2014).

Section 1 - Ricker has waived his freestanding claims of prosecutorial misconduct because they were known and available on direct appeal but not raised.

[¶10] Post-conviction relief is a "narrow remedy" that is limited to the grounds enumerated in Indiana Rules for Post-Conviction Relief. Kirby v. State, 95 N.E.3d 518, 520 (Ind. 2018). Those grounds may be generally characterized as "limited collateral challenges to a conviction and sentence" involving issues which were unknown at the time of trial or unavailable on direct appeal. Wilson v. State, 157 N.E.3d 1163, 1169 (Ind. 2020). Issues that were available for direct appeal but were not raised are waived, and issues that were raised on direct appeal...