 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                      FILED
                                                                   May 30 2012, 9:07 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                                 CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
 collateral estoppel, or the law of the case.                                   tax court




ATTORNEYS FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                         GREGORY F. ZOELLER
Public Defender of Indiana                               Attorney General of Indiana

C. BRENT MARTIN                                          NICOLE M. SCHUSTER
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

MITCHELL L. ROGERS,                                      )
                                                         )
       Appellant-Defendant,                              )
                                                         )
                vs.                                      )      No. 48A02-1110-PC-1028
                                                         )
STATE OF INDIANA,                                        )
                                                         )
       Appellee-Plaintiff.                               )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Rudolph R. Pyle, III, Judge
                               Cause No. 48C01-0710-PC-513


                                                May 30, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Mitchell Lee Rogers appeals from the denial of his petition for post-conviction relief

following his conviction for sexual battery as a class D felony, and criminal deviate conduct

and battery, both as class B felonies. Rogers was also found to be a repeat sexual offender.

Roger presents the following issues for review:

       1.     Did appellate counsel render ineffective assistance in failing to present
              a claim of double jeopardy violation?

       2.     Did appellate counsel render ineffective assistance in failing to
              challenge the trial court’s exclusion of evidence of Rogers’s prior
              sexual relationship with his victim?

       We affirm in part, reverse in part, and remand with instructions.

       In an unpublished memorandum decision affirming Rogers’s convictions upon direct

appeal, this court set out the underlying facts as follows:

                On October 16, 2001, the lock on A.F.’s door was broken and her
       apartment was burglarized. Landlord Douglas Burns agreed to repair the door
       the next day. In the meantime, A.F. was unable to lock her apartment door.
       A.F. was afraid to be alone in her unlocked apartment and tried unsuccessfully
       to contact family and friends to stay with her. A.F. contacted Rogers, an old
       friend from high school, and invited him to her apartment.
                Rogers arrived that evening, and the pair went to a local tavern. Two
       hours later, A.F. and Rogers returned to the apartment. When A.F. went to use
       the bathroom, Rogers walked in on her. A.F. told him that she would be out
       shortly, and he left the bathroom. As she walked out of the bathroom, Rogers
       asked A.F. for a hug, and she hugged him. Then, Rogers tried to pull A.F.’s
       jeans down while she attempted to pull them up. Rogers carried A.F. into the
       living room, placed her on her knees, and sodomized her. A.F. cried and asked
       him to stop. Rogers hit her in the face, told her to shut up, and held her down
       during the act.
                Afterwards, A.F. ran to her bedroom and locked the door. She stayed in
       her room until she heard Rogers leave the apartment. Then, A.F. went to the
       living room and found the contents of her purse on the floor and discovered
       that sixty or seventy dollars were missing. A.F. did not report the incident
       immediately to the police because she “wanted to forget about it and pretend
       that it didn’t happen.” Tr. at 65. A.F. was scared and upset for the remainder
       of the night and for several weeks thereafter. Early the next morning, Rogers

                                              2
      returned to A.F.’s apartment. He knocked on her door and told her that he
      needed to look for his jacket. A.F. threatened to call the police unless Rogers
      left the premises, and he immediately left.
              A few hours later, Burns went to A.F.’s apartment to fix the door. A.F.
      told him that she had been sexually assaulted. Burns described A.F. as
      “emotionally upset, shaking, crying, and almost chain smoking.” Id. at 97. He
      described A.F. as “very, very upset about the entire incident.” Id. at 100.
      Burns reported the assault to the police.
              The same day, Anderson Police Officer Chris Abshire interviewed A.F.
       She told him that she had been assaulted but refused to disclose Rogers’s
      identity because she was scared. Several weeks later, Anderson Police
      Detective Darin Benson contacted A.F. A few days later, A.F. gave Detective
      Benson a videotaped statement identifying Rogers as her assailant and
      describing the assault. On November 5, 2001, A.F. submitted to a medical
      examination.
              On March 22, 2002, the State charged Rogers with sexual battery,
      criminal confinement, criminal deviate conduct, battery resulting in bodily
      injury, and theft. … On October 3, 2003, the jury found Rogers guilty of
      sexual battery, criminal confinement, criminal deviate conduct, and battery.
      He was acquitted of the theft charge. Rogers admitted to a previous conviction
      for sexual battery and was adjudicated a repeat sexual offender. Rogers now
      appeals.

Rogers v. State, No. 48A02-0404-CR-377, slip op. at 2-4 (Ind. Ct. App. Sept. 14, 2004)

(footnote omitted).

                                            1.

      Rogers contends that the post-conviction court erred in determining that appellate

counsel did not render ineffective assistance in failing to challenge on double jeopardy

grounds his conviction of both criminal deviate conduct and sexual battery. Post-conviction

proceedings are civil in nature. Therefore, a petitioner must establish his claims by a

preponderance of the evidence. Ind. Post–Conviction Rule 1(5); Hampton v. State, 961

N.E.2d 480 (Ind. 2012). Moreover, post-conviction procedures do not offer a super-appeal.

Instead, “‘subsequent collateral challenges to convictions must be based on grounds


                                            3
enumerated in the post-conviction rules.’” Hampton v. State, 961 N.E.2d at 491 (quoting

Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003)). A

claim of ineffective assistance of appellate counsel is evaluated using the standard articulated

by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

Hampton v. State, 961 N.E.2d 480. In order to establish a claim of ineffective assistance of

counsel, a petitioner must demonstrate that counsel performed deficiently and the deficiency

resulted in prejudice. Id. (citing Strickland v. Washington, 466 U.S. 668). In applying this

standard, we ask whether, in view of all the circumstances, counsel’s actions were

“reasonable … under prevailing professional norms.” Strickland v. Washington, 466 U.S. at

688. Our scrutiny of counsel’s performance must be “highly deferential.” Hampton v. State,

961 N.E.2d at 491 (quoting Strickland v. Washington, 466 U.S. at 689). Moreover, even if

we deem appellate counsel’s performance to be deficient, the petitioner will not prevail

unless he demonstrates “a reasonable probability that the outcome of the direct appeal would

have been different.” Id. at 491.

       “When evaluating a claimed deficiency in appellate representation due to an omission

of an issue, a post-conviction court is properly deferential to appellate counsel’s choice of

issues for appeal ‘unless such a decision was unquestionably unreasonable.’” Id. (quoting

Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998)). Our

Supreme Court expanded upon this particular issue in Hampton, as follows:

       Such deference is appropriate because the selection of issues for direct appeal
       “is one of the most important strategic decisions of appellate counsel.”
       [Bieghler v. State,] 690 N.E.2d at 194. “Appellate counsel’s performance, as
       to the selection and presentation of issues, will thus be presumed adequate
       unless found unquestionably unreasonable considering the information

                                               4
       available in the trial record or otherwise known to the appellate counsel.” Ben–
       Yisrayl v. State, 738 N.E.2d at 261. In crafting an appeal, counsel must choose
       those issues which appear from the face of the record to be most availing.
       “Experienced advocates since time beyond memory have emphasized the
       importance of winnowing out weaker arguments on appeal and focusing on
       one central issue if possible, or at most on a few key issues.” Jones v. Barnes,
       463 U.S. 745, 751–52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987, 994 (1983).
       Thus, to prevail in such claim in post-conviction proceedings, it is not enough
       to show that appellate counsel did not raise some potential issue; instead, the
       defendant must show that the issue was one which a reasonable attorney would
       have thought availing.

Id. at 491-92.

       A petitioner appealing from the denial of post-conviction relief stands in the position

of one appealing from a negative judgment. Id. at 480. Therefore, the petitioner must

convince us “‘that the evidence as a whole leads unerringly and unmistakably to a decision

opposite that reached by the post-conviction court.’” Id. at 492 (quoting Stevens v. State, 770

N.E.2d at 745). Put another way, we must be convinced “that there is no way within the law

that the court below could have reached the decision it did.” Id. (quoting Stevens v. State,

770 N.E.2d at 745) (emphasis in original). “We review the post-conviction court’s factual

findings for clear error, but do not defer to its conclusions of law.” Id.

       Rogers contends his convictions of both criminal deviate conduct and sexual battery

violate the double jeopardy proscription in the Indiana Constitution. The double jeopardy

clause of the Indiana Constitution provides, in relevant part: “No person shall be put in

jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. Two or more offenses are the

“same offense” if “‘with respect to either the statutory elements of the challenged crimes or

the actual evidence used to convict, the essential elements of one challenged offense also

establish the essential elements of another challenged offense.’” Sloan v. State, 947 N.E.2d

                                              5
917, 924 (Ind. 2011) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999)) (emphasis

in original). When applying this test, we are required to “‘identify the essential elements of

each of the challenged crimes and to evaluate the evidence from the jury’s perspective....’”

Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831,

832 (Ind. 200)). “In determining the facts used by the fact-finder to establish the elements of

each offense, it is appropriate to consider the charging information, jury instructions, and

arguments of counsel.” Id.

       At the hearing on Rogers’s PCR petition, appellate counsel testified that he did not

present a double jeopardy challenge with respect to the sexual battery and criminal deviate

conduct convictions because the two were based upon two distinct acts. He explained that

the sexual battery could have been premised upon Rogers’s struggle to unzip A.F.’s jeans and

his act of forcefully pulling them down to her knees. These acts occurred in the hallway just

outside the bathroom and were separate and distinct from the anal rape that occurred after he

carried her from there into the living room. Although the evidence may have supported a

separate conviction for sexual battery based on this evidence, our examination of the

charging information, jury instructions, and arguments of counsel leads us to discount the

possibility that the jury’s verdicts reflected the State’s proffered analysis. The charging

information for sexual battery contained a generic allegation that Rogers committed a forced

touching of A.F. with the intent to arouse his sexual desires. It did not specify any

particularized facts that would direct the jury’s attention to any particular portion of Roger’s

attack upon A.F. The jury instructions were similarly non-specific.

       The State’s opening argument and questioning of witnesses did not correlate the

                                               6
charge of sexual battery to actions in or near the bathroom. Further, the prosecutor’s final

argument is particularly problematic for the State’s position upon appeal. Not only did it not

link the sexual battery charge to the struggle in the hallway just outside the bathroom, i.e.,

Rogers’s forceful unzipping and lowering of A.F.’s jeans, it affirmatively associated that

charge with the anal rape, viz.:

       In this case the defendant has been charged with sexual battery. And I believe
       the legal definition that you guys are going to be given says that a person who
       with the intent to arouse or satisfy the person’s own sexual desires or the
       desires of another person, touches another person when that person is, one,
       compelled to submit to touching by force of [sic] the imminent threat of force,
       or is mentally disabled or deficient that consent to the touching cannot be
       given, commits a sexual battery, Class B [sic] felony. The long and short of it,
       [A.F.] testified that the defendant had her, “bent over the van seat and he
       sodomized her.” She told us that he ejaculated inside of her. She remembered
       semen and blood coming from inside of her after he was finished. She recalled
       how she struggled with him and she remembered … she said, “I didn’t just let
       him do that. I couldn’t do anything to stop him.” So we have Count I.

Direct Appeal Transcript at 152-53 (emphasis supplied).

       In the final analysis, there was surely evidence that a sexual battery occurred in the

hallway that was separate and distinct from the criminal deviate conduct that occurred later in

the living room. In reviewing the charging information, jury instructions, and – most

especially – the arguments of counsel, however, we conclude that Rogers has demonstrated

“a reasonable possibility that the evidentiary facts used by the fact-finder to establish” the

elements of Rogers’s criminal deviate conduct conviction were also used to establish the

elements of his sexual battery conviction. Sloan v. State, 947 N.E.2d at 924. Therefore, the

conviction for sexual battery cannot stand and must be vacated.

       This conclusion does not end the matter, however. We note that the jury returned a


                                              7
guilty verdict on Counts I and II, i.e., sexual battery and criminal confinement, respectively.

At sentencing, the trial court “merged” Count II with Count I, stating,

       Okay, the defendant has been found guilty of Count I, sexual battery, a D
       felony and he has also been found guilty of criminal confinement, a D felony
       and that is Count II, and I am going to show that those merge. So I and II
       merge and you are sentenced to under … say double jeopardy, double jeopardy
       by charge I guess, or at least the evidence … quite honestly there is one area of
       the law that is still pretty murky, it state double jeopardy [sic], but in any event
       this one is going to come out I think pretty good. … You are sentenced on
       Count I and II which merge to three (3) years at the Indiana Department of
       Correction.

Direct Appeal Transcript at 219. Having vacated the greater offense, we note that the lesser

offense – the merged offense of criminal confinement – appears to remain. We say “appears”

because the record does not contain the judgment of conviction, but instead merely the

abstract of judgment. Our Supreme Court has held, “[i]t is the court’s judgment of

conviction and not the abstract of judgment that is the official trial court record and which

thereafter is the controlling document.” Robinson v. State, 805 N.E.2d 783, 794 (Ind. 2004).

The abstract of judgment indicates in two places that the criminal confinement conviction

“merged with Count I”, but reflects no separate sentence for the merged conviction.

Appellant’s Direct Appeal Appendix at 110. The CCS entry related to the sentencing hearing

states, in relevant part:

       Defendant having been found guilty by jury of Amended Count I, Sexual
       Battery, Class D Felony, defendant is sentenced to the Indiana Department of
       Corrections [sic] for a period of three (3) years executed, amended Count
       Count II, Criminal Confinement, Class D Felony, three (3) years executed,
       Court finds Count I and II merge.




                                                8
Id. at 3.1 The trial court’s comments at the sentencing hearing are similarly vague. Without

the ability to review the judgment of conviction, we are left to speculate somewhat as to

whether formal judgment of conviction was entered against Rogers on the criminal

confinement count, but the most reasonable interpretation of the material before us is that it

was.

        There is compelling authority for the view that the criminal confinement conviction

should have been vacated, not merged.2 See, e.g., Mason v. State, 532 N.E.2d 1169, 1171

(Ind. 1989) (the Court stated that is was “inappropriate” to merge a conviction and sentence

for an inherently lesser offense into the greater offense; instead, the lesser conviction must be

vacated), cert. denied, 490 U.S. 1049; Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct.

App. 2007) (court held that it was not adequate for the trial court to “merge” a conviction for

a factually included lesser offense, notwithstanding that the trial court did not sentence the

defendant on the merged offense; rather, the offense “must be vacated”), trans. denied.

Regardless, the fact remains that at this point, the criminal confinement conviction remains

valid, albeit merged and arguably unsentenced.                    Now, however, we have another

complication: the greater offense that subsumed the factually lesser-included offense has

been vacated. What now?


1
  Ultimately, the trial court imposed a thirty-three year, executed sentence, including three years for the
sexual battery conviction under Count I, twenty years for the criminal deviate conduct conviction under
Count III, which was enhanced by ten years as a result of the repeat sexual offender adjudication, and one
hundred and eighty days for the battery conviction under Count IV. The sentence for Count II was
imposed consecutive to Count III, and concurrent with Count IV.
2
  In so noting, we express no opinion on the trial court’s conclusion that the criminal confinement conviction
did, in fact, violate double jeopardy vis-à-vis the sexual battery conviction. A case can be made that it did
not.

                                                      9
        Our Supreme Court delved into this subject in Carter v. State, 750 N.E.2d 778 (Ind.

2001). The defendant in that case was found guilty of three alcohol-related driving offenses:

Count 1, operating a vehicle with at least ten-hundredths percent (0.10%) of alcohol by

weight in grams in one hundred (100) milliliters of the person’s blood, a class C

misdemeanor; Count 2, operating a vehicle while intoxicated, a class A misdemeanor; and

Count 3, operating a vehicle while intoxicated with a previous conviction of operating while

intoxicated within the five immediately preceding years, a class D felony. The verdicts on

Counts 1 and 2 stemmed from a jury trial. After those verdicts were announced, the

defendant waived his right to jury trial and Count 3 was tried to the bench. The court found

the defendant guilty of Count 3. For double jeopardy reasons, the trial court entered

judgment of conviction only upon Count 3.

        Upon direct appeal, a different panel of this court affirmed the conviction but sua

sponte remanded with instructions to vacate the guilty verdicts on Counts 1 and 2, which that

panel referred to as “conviction[s]”.3 Carter v. State, 734 N.E.2d 600, 605 (Ind. Ct. App.

2000) vacated, 750 N.E.2d 778. The Supreme Court granted transfer and affirmed the

resolution of the substantive issues presented by the defendant, but reversed the order to

vacate the guilty verdicts on Counts 1 and 2, deeming it “unnecessary” to do so. Carter v.

State, 750 N.E.2d at 778. The Court indicated that a jury verdict on which the court did not

enter judgment is “unproblematic … in the double jeopardy context.” Id. at 781. Further, the


3
   As the Supreme Court explained in Carter, “conviction” has several meanings, one of which is consistent
with the way the Rogers panel used it here, i.e., referring to a guilty verdict rendered by a jury. The term also
refers to a judgment of conviction entered by a trial court. The Supreme Court explained, “a verdict by a jury
and a judgment issued by a court are two rather different acts from which different consequences flow. They

                                                       10
Court noted that it may do more harm than good to vacate a jury verdict not reduced to

judgment, especially if the greater offense is reversed “for reasons specific to the incremental

elements between the greater and a lesser included offense.” Id. at n.9. This, of course,

refers to the prospect of reinstating the lesser offense upon reversal of the greater offense.

        In Carter, the Court mentioned specifically entering judgment upon a guilty verdict

not reduced to judgment by the court, but in so doing indicated that even a vacated guilty

verdict could be reinstated, citing Taflinger v. State, 698 N.E.2d 325 (Ind. Ct. App. 1998).

In Taflinger, the defendant was found guilty of attempted murder and neglect of a dependent.

Citing double jeopardy concerns, the trial court entered judgment of conviction only on the

attempted murder count. The State then moved to dismiss the neglect conviction rather than

merge it with the attempted murder conviction. The trial court granted that motion. Later,

this court reversed the attempted murder conviction on grounds of instructional error. Upon

remand, there was no attempt to retry the defendant for attempted murder. Rather, the State

filed an information charging the defendant with neglect of a dependent. Thereafter, the

State filed a motion to reinstate the previously dismissed neglect conviction, which the trial

court granted. The defendant appealed, contending “the trial court violated the prohibition

against double jeopardy by imposing sentence on a verdict that had been previously

dismissed. Id. at 326. This court identified the primary purpose of the double jeopardy

clause as addressing the threat of multiple prosecutions, i.e., to prevent multiple trials for the

same allegedly criminal conduct. The court cited the following rationale from United States


describe a two-tier process of verdicts or findings that are usually, but not invariably, followed by conviction
and sentencing.” Carter v. State, 750 N.E.2d at 780.

                                                      11
v. Wilson, 420 U.S. 332 (1975):

       The underlying idea ... is that the State with all its resources and power should
       not be allowed to make repeated attempts to convict an individual for an
       alleged offense, thereby subjecting him to embarrassment, expense and ordeal
       and compelling him to live in a continuing state of anxiety and insecurity, as
       well as enhancing the possibility that even though innocent he may be found
       guilty.

Taflinger v. State, 698 N.E.2d at 327-28 (quoting State v. Monticello Developers, Inc., 527

N.E.2d 1111, 1112 (Ind. 1988)). This concern would not be implicated by the reinstatement

of a verdict or conviction that was vacated because it was a lesser included offense and

judgment of conviction was entered on the greater offense. Rather, the defendant was merely

resentenced on a jury verdict that had been previously dismissed. The court explained:

       By reinstating the jury’s verdict of guilty and sentencing [the defendant]
       accordingly, the trial court was not affording the State another opportunity to
       prove its case. The State had already convicted [the defendant] in a jury trial of
       neglect of a dependent child causing serious bodily injury. He was merely
       resentenced on a jury verdict that had been previously dismissed. Because [the
       defendant] was not threatened with nor subject to a reprosecution there was no
       double jeopardy bar.

Id. at 328. In the present case, the trial court merged the criminal confinement conviction

with the sexual battery conviction, which we have vacated.          Would conviction of both

criminal confinement and criminal deviate conduct violate the double jeopardy clause, thus

preventing reinstatement of the former charge on this basis?

       Rogers was convicted of criminal confinement of A.F. as a class D felony. Therefore,

the State was required to prove that he knowingly or intentionally confined A.F. without her

consent. See I.C. § 35–42–3–3(a). The trial court informed the jury that the charging

information alleged Rogers did “knowingly confine [J.R.] without that person’s consent.”


                                              12
Appellant’s Direct Appeal Appendix at 55. The trial court instructed the jury that to convict

Rogers of criminal confinement as a class D felony, the State was required to prove beyond a

reasonable doubt that Rogers knowingly or intentionally confined A.F. without her consent.

Rogers was also convicted of criminal deviate conduct with respect to A.F. as a class B

felony. Therefore, the State was required to prove that he knowingly or intentionally caused

A.F. to perform or submit to deviate sexual conduct when she was compelled to do so by

force or imminent threat of force. See I.C. § 35–42–2–2. The trial court informed the jury

that the charging information alleged Rogers had knowingly or caused A.F. to perform or

submit to deviate sexual conduct, i.e., anal intercourse.

       The evidence necessary to establish the essential elements of criminal confinement

was that Rogers confined A.F. against her consent. This element was not necessary to

establish his commission of the criminal deviate conduct offense. Testimony established that

Rogers struggled with A.F. in an attempt to unfasten and lower her jeans. Having

successfully accomplished that, he then carried her against her will into a different part of the

house. The criminal confinement was completed when he carried A.F. from one place to

another. As charged, to establish that Rogers committed the offense of criminal deviate

conduct as a class B felony, the State was required to prove that Rogers touched A.F.’s anus

with his penis and did so by forcing A.F. to submit to the touching against her will and by

force or threat of force. Proof of the touching was not an essential element to establish his

commission of criminal confinement as a class D felony. Moreover, the evidence supports a

reasonable inference that Rogers’s confinement of A.F. was more extensive than necessary to

commit the act of criminal deviate conduct. See Williams v. State, 889 N.E.2d 1274 (Ind. Ct.

                                               13
App. 2008), trans. denied.

       The charging information and relevant jury instructions do not shed light on whether

the jury would have understood the confinement allegation as premised upon conduct

separate and distinct from the conduct that formed the basis of the criminal deviate conduct

conviction. There was, however, evidence that Rogers committed acts distinct from the anal

rape of the victim such as would support a criminal confinement conviction that would not

violate the double jeopardy clause. Specifically, the State presented evidence of the struggle

between Rogers and the victim in the hallway just outside the bathroom, where she attempted

unsuccessfully to fend off his effort to forcibly unfasten and lower her jeans. Moreover, the

prosecutor stated during final argument:

       Count II, criminal confinement. And that says that a person is guilty of
       criminal confinement when a persons [sic] confines another person without the
       other person’s consent. The long and the short of it. The testimony of [A.F.],
       “I struggled to squirm out from beneath his hands.” Of course, if you don’t
       buy that, the criminal confinement also consist [sic] of removing one person by
       force from one place to another. She said, “I turned left out of the bathroom
       and the defendant was standing there. He asked me for a hug.” And she said,
       she reached up to give him a hug, and that is when he throws her over his
       shoulder like a rag doll and take [sic] her into the living room. She describes
       how her pants are at her knees. She is fighting with him. She is trying to get
       her pants up. And he takes her from the bedroom area into the living room
       against her will. We have Count II.

Direct Appeal Transcript at 154. As such, there is no reasonable possibility that the

evidentiary facts used by the jury to establish the elements of the criminal deviate conduct

conviction were also used to establish the elements of his criminal confinement conviction.

Sloan v. State, 947 N.E.2d 917. Reinstatement of the criminal confinement conviction would

not violate the double jeopardy clause and, therefore, consistent with the rationale espoused


                                             14
in Taflinger and as discussed above, we reinstate it.

                                               2.

       Rogers contends appellant counsel rendered ineffective assistance in failing to

challenge the trial court’s refusal to allow evidence of Rogers’s prior sexual relationship with

A.F. The day before trial was to commence, Rogers submitted a motion to present evidence

of what Rogers refers to on post-conviction relief as “a consensual one-night stand” that

occurred ten years before these events transpired. Appellant’s Brief at 14. The trial court

denied that motion on grounds that the event was too remote in time to be admissible.

Defense counsel did not seek to present the evidence at trial. Appellate counsel did not

challenge the exclusion of this evidence on direct appeal. Appellate counsel testified that he

did not challenge the preliminary ruling because he, too, believed the evidence was too

remote to be admissible and therefore that the trial court’s ruling was correct. Rogers claims

this constituted ineffective assistance of counsel.

       We reiterate that in order to prevail on this claim, Rogers must establish that this issue

was one that a reasonable attorney would have thought availing. Hampton v. State, 961

N.E.2d 480. He must convince us that “there is no way within the law that the court below

could have reached the decision it did.” Id. at 492 (quoting Stevens v. State, 770 N.E.2d at

745) (emphasis in original).

       Rogers sought to introduce the evidence in question to bolster his claim that the sexual

activity between him and A.F. on the night in question was consensual. The trial court

clearly deemed it inadmissible at least in part because it had occurred too long in the past.

Although the precise basis of the exclusion of the evidence was not completely explained, we

                                              15
note that a trial court’s ruling on the admissibility of evidence will be upheld on appeal if it is

sustainable on any legal theory supported by the record, even if the trial court did not use that

theory. Gonser v. State, 843 N.E.2d 947 (Ind. Ct. App. 2006).

       Rule 412 of the Indiana Rules of Evidence provides:
       (a) In a prosecution for a sex crime, evidence of the past sexual conduct of a
       victim or witness may not be admitted, except:

               (1) evidence of the victim’s or of a witness’s past sexual conduct with
               the defendant;
               (2) evidence which shows that some person other than the defendant
               committed the act upon which the prosecution is founded;
               (3) evidence that the victim’s pregnancy at the time of trial was not
               caused by the defendant; or
               (4) evidence of conviction for a crime to impeach under Rule 609.

       (b) If a party proposes to offer evidence under this rule, the following
       procedure must be followed:

               (1) A written motion must be filed at least ten days before trial
               describing the evidence. For good cause, a party may file such motion
               less than ten days before trial.
               (2) The court shall conduct a hearing and issue an order stating what
               evidence may be introduced and the nature of the questions to be
               permitted.
               (c) If the state acknowledges that the victim’s pregnancy is not due to
               the conduct of the defendant, the court may instruct the jury
               accordingly, in which case other evidence concerning the pregnancy
               may not be admitted.

Pursuant to this Rule, a party must give written notice ten days before trial of his or her

intention to present evidence governed by this rule. Moreover, we have determined that this

ten-day notice requirement applies “to both the general rule prohibiting the admission of past

sexual conduct and the exceptions listed thereafter.” Sallee v. State, 785 N.E.2d 645, 651

(Ind. Ct. App. 2003), trans. denied. The evidence Rogers sought to present fits within the

exception set out in subsection (a)(1). Thus, even had appellate counsel appealed this ruling

                                                16
on direct appeal, he would not have prevailed. As a result, Rogers cannot demonstrate the

requisite prejudice. See Hampton v. State, 961 N.E.2d at 491 (quoting Strickland v.

Washington, 466 U.S. at 689) (even if we deem appellate counsel’s performance to be

deficient, the petitioner will not prevail unless he demonstrates “a reasonable probability that

the outcome of the direct appeal would have been different”). His claim of ineffective

assistance of appellate counsel on this basis is without merit. See Helton v. State, 907 N.E.2d

1020 (Ind. 2009) (we need not address whether counsel’s performance was deficient if we

can dismiss an ineffective assistance claim on the element of prejudice).

       To summarize thus far, we hold that Rogers’s conviction of sexual battery must be

reversed, but the other claim of ineffective assistance of appellate counsel is without merit

and the remaining convictions are therefore affirmed. Moreover, the conviction for criminal

confinement as a class D felony is reinstated. Because of this, Rogers’s sentence must be

revisited. At this point, we can either remand to the trial court for a new sentencing

determination or we can reweigh the proper aggravating and mitigating circumstances

independently and impose an appropriate sentence at the appellate level. See Baber v. State,

842 N.E.2d 343 (Ind. 2006), cert. denied, 549 U.S. 855. For reasons of judicial economy, we

choose the latter option.

       Understandably, neither party has included argument on the issue of sentencing. We

note, among other things, that no challenge to the appropriateness of Rogers’s sentence was

presented on direct appeal. The only change wrought by this opinion is that we have vacated

one class D felony conviction and replaced it by reinstating a different class D felony

conviction. The trial court’s identification and discussion of the aggravators and mitigators

                                              17
and its explanation of why it chose the sentence it did with respect to the original judgment of

conviction remains applicable, notwithstanding the substitution of the reinstated class D

felony criminal confinement conviction for the vacated class D felony sexual battery

conviction, and we summarily adopt it here. Accordingly, we conclude that Rogers’s

sentence will consist of three years for the class D felony criminal confinement conviction

under Count II, twenty years for the class B felony criminal deviate conduct conviction under

Count III, which is enhanced by ten years as a result of Rogers’s adjudication as a repeat

sexual offender, and one hundred and eighty days for the class B misdemeanor battery

conviction under Count IV.4 The sentence for Count II is to run consecutive to Count III,

and concurrent with Count IV, for a total executed sentence of thirty-three years.

        This cause is remanded with instructions to vacate the conviction for sexual battery

and reinstate the conviction for criminal confinement as a class D felony, and to impose

sentence consistent with the instructions set out above.

        Judgment affirmed in part, reversed in part, and remanded with instructions.

MAY, J., and BARNES, J., concur.




4
   We note that the original abstract of judgment contains a scrivener’s error indicating this is a class B
felony, as opposed to a class B misdemeanor. Obviously, this error should be corrected on the new abstract of
judgment.

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