Stevenson v. State

1

Robert W. Stevenson Appellant-Defendant v. State of Indiana Appellee-Plaintiff

No. 23A-PC-1681

Court of Appeals of Indiana

March 11, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Porter Superior Court The Honorable Mary DeBoer Judge Trial Court Cause No. 64D05-1703-PC-2766.

ATTORNEY FOR APPELLANT Russell W. Brown, Jr. Merrillville Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

RILEY, JUDGE

STATEMENT OF THE CASE

[¶1] Appellant-Petitioner, Robert Stevenson (Stevenson), appeals the post conviction court's Order, denying his petition for post-conviction relief.

[¶2] We affirm.

ISSUES

[¶3] Stevenson presents this court with two issues, which we restate as:

(1) Whether the post-conviction court's conclusion that Trial Counsel rendered effective assistance was clearly erroneous; and

(2) Whether the post-conviction court's conclusion that Appellate Counsel rendered effective assistance was clearly erroneous.

FACTS AND PROCEDURAL HISTORY

[¶4] The facts underlying Stevenson's conviction for Class A felony child molesting are as follows:

Roy Castro (Castro) and Amanda Boer (Boer) are the parents of two minor children: M.C. and J.C.... At the time of Stevenson's criminal trial, M.C. was six years old and J.C. was four years old. In early 2014, Boer's mother Carolyn, would frequently babysit the Children. At all relevant times, Stevenson was Carolyn's boyfriend. Stevenson would frequently spend time with the Children while they were at Carolyn's house.

On January 30, 2014, Castro, Castro's mother, M.C., and J.C. were in a vehicle together driving home from the dentist. While in the vehicle together, the topic turned to "puppy chow," a snack made of Chex mix covered with powdered sugar. J.C. indicated that the powdered sugar looked like the baby powder that Boer put "on his butt and his hooey during normal [diaper] changing practices." The Children used the term "hooey" to refer to a penis. During this conversation, M.C. said that "Grandpa Rob has a hooey and he asks us to suck it all the time." After hearing M.C.'s statement about "Grandpa Rob," Castro dropped the Children off with his sister and notified the police. Valparaiso Police Sergeant Jerami Simpson took the report from Castro, Boer, and Castro's mother. While taking the report, Sergeant Simpson instructed Castro and Boer not to allow M.C. and J.C. to return to Carolyn's residence. After taking the report, Sergeant Simpson relayed the report to the Department of Child Services....DCS case manager Rachel Gibson (Gibson) was assigned to the case. She soon thereafter arranged for the Children to be interviewed. On February 12, 2014, the Children were forensically interviewed by Angie Marsh (Marsh), a certified forensic interviewer. During her interview, M.C. disclosed that Stevenson had made her suck on his "hooey" while she was in the master bedroom of Carolyn's home. M.C. indicated that she had to suck on Stevenson's penis because he told her to, even though she did not want to. She indicated that he made her do so on numerous occasions. M.C. described Stevenson's penis as looking "hairy and brownish" and being "squishy." M.C. identified Stevenson's pubic hair as brown, silver and gray. M.C. indicated that one time Stevenson "peed" on the bed and that the "pee" was white. She also indicated that Stevenson wiggled his penis with his hand. M.C. further indicated that J.C. was present and watching television in the room when Stevenson forced her to suck on his penis. During his forensic interview with Marsh, J.C. indicated that he saw something happen but did not elaborate on what he saw.

On February 13, 2014, Valparaiso Police Detective Brian Thurman (Detective Thurman) interviewed Stevenson. During this interview, Stevenson stated that he was forty-five years old; that he lived with his girlfriend, Carolyn; and that he considered M.C. and J.C. to be his grandchildren. Stevenson admitted that there would be times when he would be alone with M.C. and J.C. in the master bedroom of the home he shared with Carolyn. Stevenson denied sexually molesting either of the Children.

Stevenson v. State, No. 64A03-1511-CR-2038, slip op. at 1-2 (Ind.Ct.App. Sept. 26, 2016) (record citations omitted and name parentheticals added).

[¶5] On May 7, 2014, the State filed an Information, charging Stevenson with Class A felony child molesting. Trial Counsel was appointed to represent Stevenson. Trial Counsel had been a deputy prosecutor for six years and had been lead counsel on three jury trials, but Stevenson's case was his first jury trial as a public defender. To prepare to defend Stevenson, Trial Counsel consulted with at least three experienced defense attorneys about depositions, trial preparation, evidentiary issues common to child molesting cases, and defense strategies. Trial Counsel also performed legal research on evidentiary issues common to child molesting cases. Trial Counsel met with Stevenson more than thirty times to develop a defense strategy, which always included going to trial, as Stevenson was adamant that he would not plead guilty. Trial Counsel drafted an outline of the proposed defense strategy, which Steveson approved in writing. Prior to trial, Stevenson also executed an acknowledgement that he had been advised about his rights regarding his decision to testify at trial, that he waived those rights, and that he chose to testify.

[¶6] On August 24, 2015, the trial court convened Stevenson's three-day jury trial. The State called Gibson as its third witness, and she testified about the role that M.C.'s forensic interview by Marsh had played in her DCS investigation. During Gibson's testimony, Trial Counsel objected several times that Gibson's testimony regarding M.C.'s forensic interview comprised impermissible vouching for M.C., but the trial court overruled Trial Counsel's multiple objections. The deputy prosecutor asked Gibson if she had observed Marsh ask M.C. the same question several different ways during the forensic interview and whether M.C.'s answers remained consistent. Without objection from Trial Counsel, Gibson answered both questions affirmatively.

[¶7] At the beginning of the second day of trial, Trial Counsel filed a trial brief regarding the inadmissibility of vouching evidence; however, the trial court declined to revisit or reverse any of its previous evidentiary rulings. M.C. was the first witness that day for the State. M.C. testified repeatedly and consistently that Stevenson had "told [her] to suck his hooey." (Trial Tr. Vol. I, pp. 96, 99, 100). Following M.C.'s and Boer's testimony, Marsh took the stand and provided testimony about her credentials and training as a forensic interviewer, as well as general testimony regarding how forensic interviews of children are conducted so as to not suggest answers or lead the child, at one point explaining that she sometimes asks the same question different ways to see if the child's answers are consistent and that she looks for sensory details in a child's statements. Later in her testimony and without objection, Marsh affirmed that M.C. had provided sensory details and that the things M.C. said during her interview made sense. The deputy prosecutor asked Marsh if M.C.'s statements during her interview raised any "red flags" for Marsh that things were not making sense or adding up, and Marsh replied that they did not. (Trial Tr. Vol. I, p. 166). Without objection from Trial Counsel, the deputy prosecutor asked Marsh whether she had asked M.C. the same question several ways and whether M.C.'s version of events remained consistent, and Marsh responded affirmatively to both questions, also without objection.

[¶8] At the conclusion of Marsh's testimony, the parties discussed matters pertaining to the presentation of Stevenson's defense case. J.C. had been listed as a defense witness; however, upon the State's objection, the trial court excluded J.C. as a witness based on his age at the time of the offense and the lack of relevancy of his testimony. After J.C. was excluded, Trial Counsel did not make an offer of proof regarding J.C.'s testimony. Trial Counsel and the State subsequently agreed that the videotape of J.C.'s forensic interview could be admitted if M.C.'s forensic interview was also admitted into evidence. Thereafter, the State presented the testimony of Detective Thurman, the sponsoring witness for the admission of Stevenson's videotaped interview. Prior to Stevenson's interview being admitted and published to the jury, the detective testified that Stevenson had told him that he had no contact with his three teen-aged biological children and that it was a difficult matter that he did not wish to discuss. However, Detective Thurman testified that when he asked Stevenson about it again later in the interview, Stevenson had explained that he and his ex-wife were "divorced, we worked that out[.]" (Trial Tr. Vol. I, p. 220).

The detective further testified that he had asked Stevenson about his pornography consumption to determine if M.C. had inadvertently seen something that would explain her report of abuse. Although Stevenson admitted to consuming pornography he denied watching any around M.C. or J.C. The detective related that he had told Stevenson during the interview that M.C. was "very consistent" in what she said in her initial report and her forensic interview, that the detective did not understand why M.C. would make this up at her age, and that he did not feel...