BARNES, Judge.
Brian Adcock appeals the post-conviction court's denial of his petition for post-conviction relief ("PCR petition"), which challenged his convictions for two counts of Class A felony child molesting and two counts of Class B felony sexual misconduct with a minor. We reverse and remand.
The combined and restated issue before us is whether Adcock's appellate counsel was ineffective for failing to challenge the sufficiency of the evidence against him on
L.P. was born on September 21, 1988. Adcock lived in Bedford with L.P. and her mother, and he married L.P.'s mother when L.P. was twelve. Beginning when L.P. was in third grade, Adcock would come into L.P.'s bedroom at night about once a week and fondle her breasts and try to touch her vagina. Most of these touchings occurred over L.P.'s clothes, although Adcock would sometimes try to reach underneath her clothes.
L.P. began junior high school in the fall of 2001. L.P.'s junior high school included seventh and eighth grades. L.P. turned fourteen in September 2002, at the beginning of her eighth grade year. Sometime during her seventh grade year, Adcock began frequently giving her back rubs, and these would escalate into Adcock fondling L.P.'s breasts and touching her vagina. L.P. would later testify that Adcock usually "rubbed around" her vagina with his fingers, but that "once or twice," he put his finger into her vagina. Tr. p. 453. L.P. also said, "He didn't do that that much." Id. L.P. was unsure what grade she was in when Adcock digitally penetrated her vagina.
Sometime during L.P.'s freshman year of high school, which would have been in 2003-04, Adcock began frequently rubbing his penis against L.P.'s vagina. L.P. specifically would later testify that Adcock "[j]ust rubbed against mine" and that he did not do anything else with his penis. Id. at 448.
L.P. told a friend about Adcock's conduct while she was in junior high school, but it was not reported to police at that time. In 2006, L.P. told a boyfriend about Adcock's conduct, and it was finally investigated by police in January 2008. On May 21, 2008, the State charged Adcock with a number of offenses related to L.P.
During Adcock's jury trial in September 2009, he successfully moved for a directed verdict on Counts 2 and 5 of the information because there was no evidence that Adcock had ever performed oral sex on L.P. The jury returned guilty verdicts on Counts 1, 3, 4, and 6. Adcock also was found to be a repeat sexual offender ("RSO") and sentenced accordingly.
On direct appeal, Adcock's attorney argued that the prosecutor committed misconduct during voir dire, that the trial court improperly allowed the State to make an amendment related to notice of
Adcock subsequently filed a pro se PCR petition, which later was amended by counsel. Adcock contended that he received ineffective assistance of trial counsel for not having moved for directed verdicts on all counts and that he received ineffective assistance of appellate counsel for not challenging the sufficiency of the evidence on all counts. Adcock submitted affidavits from his trial and appellate attorneys that they had not considered moving for directed verdicts or challenging the sufficiency of the evidence on appeal, but that they believed there was in fact insufficient evidence on all the convictions. Adcock moved for summary disposition of his PCR petition. The State afterward also moved for summary disposition. The PCR court granted the State's motion for summary disposition and rejected all of Adcock's claims, without entering any findings or conclusions. Adcock now appeals.
The PCR court resolved this case by summary disposition on the State's motion, pursuant to Indiana Post-Conviction Rule 1(4)(g).
Ind. Post-Conviction Rule 1(4)(g). We review a trial court's ruling on summary disposition as we would a ruling on summary judgment under Indiana Trial Rule 56. Allen v. State, 791 N.E.2d 748, 753 (Ind.Ct.App.2003), trans. denied. Summary disposition should not be granted unless there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. Any doubts about the facts and inferences to be drawn from them must be resolved in favor of the non-movant. Id. The granting of a motion for summary disposition is a matter for appellate de novo determination when there are no disputed facts and the determinative issue is a question of law. Norris v. State, 896 N.E.2d 1149, 1151 (Ind.2008). The PCR court also failed to enter any findings to accompany its order. Adcock contends the PCR court erroneously granted the State's motion for summary disposition and should have granted summary disposition in his favor instead pursuant to his own motion. Adcock does not request that we remand this case for an evidentiary hearing or for the PCR court to enter findings. The State, having moved for summary disposition, argues at the outset that the PCR court should have entered findings and asks us to remand for such findings to be entered, but alternatively argues on the merits that summary disposition was properly granted.
Regarding the State's remand request, it is true that Indiana Post-Conviction Rule 1(6) requires a PCR court to
We also note that whether a defendant received effective assistance of counsel during trial and appeal often is characterized as a factual, not legal, question. See Evolga v. State, 722 N.E.2d 370, 373 (Ind.Ct.App.2000). A defendant claiming ineffective assistance of appellate counsel must show counsel was deficient in his or her performance and that the deficiency resulted in prejudice. Garrett v. State, 992 N.E.2d 710, 719 (Ind.2013). To satisfy the first prong, the defendant must show that counsel's representation 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. "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001), cert. denied. In other words, to demonstrate deficient performance by appellate counsel, "`a defendant must show from the information available in the trial record or otherwise known to appellate counsel that appellate counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy.'" Id. at 606 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind.2000), cert. denied).
Here, in addition to the direct appeal transcript, Adcock submitted an undisputed affidavit from his appellate attorney that he never considered raising a sufficiency of the evidence challenge to any of Adcock's convictions, but stating that there was in fact insufficient evidence to support any of the convictions. This affidavit fails to disclose any strategic or tactical reason for not challenging the sufficiency of the evidence on direct appeal, as might have excused counsel's failure to raise that issue, and instead plainly establishes that it was simply a matter of oversight. We do not believe there are any factual issues surrounding appellate counsel's performance that need to be resolved. Instead, the questions before us are purely legal: what were the legal merits of a
We first address Adcock's conviction under Count 1, which alleged that Adcock committed Class A felony child molesting by placing his finger inside L.P.'s vagina between August 2001 and August 2002. In order to convict Adcock of this offense as charged under the statute in effect at the time of the alleged offense and trial, the State was required to prove that he performed deviate sexual conduct with L.P. when she was under fourteen years of age and he was over twenty-one years of age. I.C. § 35-42-4-3(a) (2002). "Deviate sexual conduct" was defined as "an act involving: (1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." I.C. § 35-41-1-9 (2002).
However, Adcock notes that when directly asked, L.P. could not remember when the digital penetrations occurred or what grade she was in at the time — only that they had occurred sometime during junior high school. This is highly relevant, because L.P. turned fourteen on September 21, 2002, at the beginning of her eighth grade year. Once L.P. turned fourteen,
This was a case where the exact date or dates of Adcock's alleged conduct was important because of the dividing line between child molesting and the less serious crime of sexual misconduct with a minor. Here, L.P. could only testify that Adcock had inserted his finger into her vagina sometime while she was in junior high school; she was thirteen for about one-half of that time and fourteen for the other half. There is a lack of proof as to L.P.'s age when the conduct occurred. Such deficiency in L.P.'s testimony is clear and obvious on the face of the record, and Barger's holding regarding the necessity of proving the exact date of an occurrence in cases such as this was well-settled at the time of Adcock's direct appeal. If such an argument had been made on direct appeal, we would have been compelled to rule in Adcock's favor and hold that there was insufficient evidence to convict him of Class A felony child molesting.
The next question is whether Adcock could have instead been convicted of Class B felony sexual misconduct with a minor on Count 1. An identical question is whether there was sufficient evidence to support Adcock's conviction on Count 4 for Class B felony sexual misconduct with a minor, which also was based on his alleged digital penetration of L.P.'s vagina. Although Barger would permit such convictions, given that L.P. clearly was under sixteen years of age when she was in junior high school, the statute of limitations for Class B felonies comes into play here. When these charges were filed, the statute of limitations for a Class B felony was five years. I.C. § 35-41-4-2(a)(1) (2008). The statute contained, and still contains, an extended statute of limitations, up to a victim's thirty-first birthday, for certain sex offenses: vicarious sexual gratification, child solicitation, child seduction, incest, and child molestation by sexual intercourse or deviate (or "other") sexual conduct under Indiana Code Section 35-42-4-3(a); there was and is no extended limitations period for sexual misconduct with a minor, or for child molesting by fondling under Indiana Code Section 35-42-4-3(b). See I.C. § 35-41-4-2(e) (2008); I.C. § 35-41-4-2(e) (2014). Here, given that the State filed its information on May 21, 2008, any charges against Adcock for sexual misconduct with a minor occurring before May 21, 2003, would have been time-barred.
In King v. State, 560 N.E.2d 491 (Ind. 1990), the State alleged that the defendant molested the victim sometime in the spring of 1981 and filed a charge, which had a five-year statute of limitations, on March 19, 1986. The victim testified as to an ongoing series of incidents beginning in 1979 that lasted four-and-a-half years. However, there was no testimony from
This case is highly similar to King. L.P. could remember that Adcock's acts of digital penetration occurred sometime during junior high school, but there is no testimony that any such act occurred on or after May 21, 2003, which would have been at the very end of L.P.'s eighth grade year. One of L.P.'s friends also testified about being told by L.P. that Adcock was "touching" her, sometime when they were fourteen or fifteen, but that L.P. was "general" in her description of what happened. Tr. p. 523. Thus, the friend did not testify as to any time frame as to when Adcock might have digitally penetrated L.P. In sum, it is obvious from the face of the record that the State failed to prove that Adcock's alleged acts of digitally penetrating L.P. occurred on or after May 21, 2003. The statutory limitations period for sexual misconduct with a minor likewise was clear at the time of Adcock's direct appeal, and King's resolution of a statute of limitations question in favor of the defendant on very similar facts was on the books as well. If a statute of limitations argument had been made on direct appeal, we would have been compelled to rule that there was insufficient evidence that the acts alleged in Counts 1 and 4 had occurred within the required statute of limitations for Class B felony sexual misconduct with a minor.
Next, we address Adcock's convictions under Counts 3 and 6. Count 3 alleged Adcock committed Class A felony child molesting via deviate sexual conduct "by placing his penis against [L.P.'s] vagina," while Count 6 alleged he committed Class B felony sexual misconduct with a minor by engaging in precisely the same conduct. App. pp. 65-66. The first problem with the conviction under Count 3 is that L.P. testified with perfect clarity that the first time Adcock touched her vagina with his penis was when she was in high school.
There is an even more fundamental problem with Counts 3 and 6, however. To begin with, the definition of deviate sexual conduct included any act involving one person's sex organ and the other person's anus or mouth. I.C. § 35-41-1-9 (2002). It did not include mere contact between two sex organs. The definition of deviate sexual conduct did include any penetration of a person's sex organ by an "object." Id. Likewise, Class A felony child molesting or Class B felony sexual misconduct with a minor could be proven by evidence of sexual intercourse. Sexual intercourse is defined as "an act that includes any penetration of the female sex organ by the male sex organ." I.C. § 35-41-1-26 (2002); I.C. § 35-31.5-2-302 (2014).
Thus, the question here is whether there is any evidence that Adcock penetrated L.P.'s sex organ with his penis. At trial, L.P. testified as follows:
Tr. pp. 446-448.
The State relies exclusively upon Short v. State, 564 N.E.2d 553 (Ind.Ct.App.1991), in arguing that the above testimony was sufficient evidence of penetration. In that case, we held that "penetration" may be proven by evidence of any penetration of the female sex organ, including external genitalia such as the vulva or labia, and that proof of penetration of the vagina is not required. Short, 564 N.E.2d at 559. We affirmed a conviction for molestation based on sexual intercourse where a victim who was five at the time of the incident and six at the time of trial testified regarding the defendant's touching her "butt" with his "front butt," and there was medical evidence that the victim's hymen had sustained trauma. Id. The State cites this case for the proposition that proof that a defendant's penis and a victim's vagina "made contact" is sufficient evidence of penetration. Appellee's Br. p. 22.
The State wholly fails to acknowledge our supreme court's decision in Spurlock v. State, 675 N.E.2d 312 (Ind.1996), which Adcock argues is controlling here. This case, while agreeing with Short's general holding and that "proof of the slightest penetration is enough to support a conviction," clearly establishes that mere contact between a male and female sex organ is not by itself sufficient evidence of penetration. Spurlock, 675 N.E.2d at 315. There, the twelve-year-old victim testified that the defendant's penis touched her vagina. She also said that the defendant "tried" to have intercourse with her but she did not know whether he had penetrated
L.P. was twenty at the time of trial, describing acts that allegedly took place when she was fourteen or fifteen. At no time did she testify that Adcock penetrated any part of her genitalia with his penis; in fact, the prosecutor never asked her whether such penetration occurred. In describing Adcock's digital penetration of her, L.P. testified as to Adcock penetrating her external genitalia but not her vagina. Thus, she had the capability of describing such penetration by Adcock's penis if it had occurred, but she did not.
We further observe that, although there was evidence that Adcock touched L.P.'s vagina with his penis, it is not possible on appeal to merely reduce a conviction for molestation or sexual misconduct with a minor by penetration to the less-serious offense of molestation or misconduct by touching or fondling when the evidence of penetration is lacking. See Downey v. State, 726 N.E.2d 794, 798-99 (Ind.Ct.App. 2000), trans. denied. "While child molesting by fondling or touching is a lesser offense than child molesting by deviate sexual conduct [or penetration] in terms of sentencing, it is neither inherently nor factually included in the greater offense and is in fact an entirely separate offense." Id. at 799. Thus, a sufficiency challenge to Adcock's convictions on Counts 3 and 6 would have resulted in complete vacation of those convictions, not their reduction to lesser felonies. See also Spurlock, 675 N.E.2d at 317 (ordering vacation of child molesting conviction unsupported by sufficient evidence of penetration, not reduction of that conviction to a lesser conviction for molestation by touching or fondling).
To summarize, we conclude appellate counsel, for no apparent strategic or tactical reason, overlooked significant and obvious problems with the sufficiency of the evidence supporting each of Adcock's convictions. If such arguments had been made, there is more than a reasonable probability that they would have been successful; we would have been required to vacate each of the convictions. And, because those vacations would be based upon insufficient evidence, the State would be
We recognize that L.P. testified at length about a variety of inappropriate and illegal conduct by Adcock and that as a result of our decision today, he will face no legal consequences for those actions. Nevertheless, it was the State's duty to present sufficient evidence to support Adcock's convictions. It was the duty of appellate counsel to bring the plain, significant, and obvious sufficiency problems with Adcock's convictions to this court on direct appeal. And, it is our duty to follow the law as clearly set forth in our statutes and our supreme court's decisions and to ensure that a defendant's convictions are consistent with that law and the evidence presented at trial.
The trial court erred in granting the State's motion for summary disposition. Rather, we conclude as a matter of law that Adcock received ineffective assistance of appellate counsel. We reverse and remand for the granting of Adcock's PCR petition and the vacating of Adcock's convictions for two counts of Class A felony child molesting and two counts of Class B felony sexual misconduct with a minor.
Reversed and remanded.
BRADFORD, J., and BROWN, J., concur.
Finally, we note the State argues, "L.P. stated that by private area she meant her `vagina' and not just the vulva or labia or clitoris." Appellee's Br. p. 18. This suggests that L.P. gave a detailed description of her genitalia, but she did not. She simply referred to Adcock touching her "vagina," without elaboration. Tr. p. 427. We urge the State to be more cautious when relating facts in its briefs.
