MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Nov 02 2018, 7:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                      Curtis T. Hill, Jr.
La Porte, Indiana                                       Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eugene C. Tschopp,                                      November 2, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-287
        v.                                              Appeal from the La Porte Superior
                                                        Court
State of Indiana,                                       The Honorable Michael S.
Appellee-Plaintiff.                                     Bergerson, Judge
                                                        Trial Court Cause No.
                                                        46D01-1705-F1-417



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018                  Page 1 of 11
                                          Case Summary
[1]   Eugene C. Tschopp (“Tschopp”) appeals his convictions, following a jury trial,

      for two counts of child molesting as Level 1 felonies; 1 two counts of child

      molesting as Level 4 felonies;2 incest as a Level 4 felony;3 and criminal

      confinement as a Level 5 felony.4 We affirm.



                                                   Issues
[2]   Tschopp raises the following two issues on appeal:


                 I.        Whether he received ineffective assistance of trial counsel.


                 II.       Whether the State presented sufficient evidence to support
                           his conviction for criminal confinement.


                                 Facts and Procedural History
[3]   In December 2016, J.T. was thirteen years old and lived with her father,

      Christopher Tschopp (“Father”), step-mother, Tschopp, her sister, her brother,

      and one of her step-brothers, C.J. Tschopp is J.T.’s paternal uncle. J.T. shared

      a bedroom on the second floor of the home with her younger sister, I.T. The




      1
          Ind. Code § 35-42-4-3(a)(1).
      2
          I.C. § 35-42-4-3(b).
      3
          I.C. § 35-46-1-3.
      4
          I.C. § 35-42-(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018   Page 2 of 11
      two sisters had bunk beds and J.T. would frequently sleep in the bottom bed

      with I.T. because of nightmares.


[4]   In January 2017, J.T. and I.T. informed Father that Tschopp had molested

      them. Father and his wife reported the accusations to the authorities and, on

      May 10, 2017, the State charged Tschopp with two counts of child molesting,

      as Level 1 felonies; three counts of child molesting, as Level 4 felonies; incest,

      as a Level 4 felony; and criminal confinement, as a Level 5 felony. A jury trial

      began on October 23, 2017.


[5]   At trial, J.T. testified in detail about eight separate instances that occurred

      during the winter of 2016-2017, in which Tschopp had sexual intercourse with,

      and/or sexually assaulted, J.T. in her home. J.T. described the times, places,

      and events of each occurrence in some detail. She testified that on at least four

      of these occasions, Tschopp entered her room during the night, woke her up,

      and either sexually assaulted her there or else had her follow him downstairs

      where he sexually assaulted her. J.T. testified that Tschopp molested her by

      touching her vagina and breasts and by penetrating her vagina with both his

      fingers and penis. She testified that on the last occasion, Tschopp bit J.T. on

      her arm when he was attempting to wake her but she was moving around. The

      bite left a mark on J.T.’s arm. On cross-examination of J.T., Tschopp’s lawyer

      asked her about the large number of people in the house, whether C.J. was

      sometimes in her bedroom, and her father’s rule that C.J. was not supposed to

      be in J.T.’s bedroom.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018   Page 3 of 11
[6]   I.T. also testified at Tschopp’s trial. I.T. testified about one instance in which

      Tschopp grabbed I.T., pulled her onto his cot in the living room, and rubbed

      her “butt” with his hand “in a circular motion.” Tr. Vol. II at 100. I.T. also

      testified about two separate occasions when she witnessed Tschopp sexually

      assault J.T. I.T. testified that, on more than one occasion, she witnessed

      Tschopp enter her and J.T.’s bedroom while the girls were in bed and place

      either a basket or a chair up against the bedroom door to keep the door closed.

      I.T. testified that, on those occasions, Tschopp tried to wake up J.T. I.T. said

      she eventually convinced J.T. to tell their father about the molesting. J.T.

      informed her father of the molesting by writing it in notes because she was

      “scared” to tell him in person. Id. at 169. On cross-examination, Tschopp’s

      counsel asked I.T. about where the other males in the house slept. I.T. testified

      that there was a house rule that “people were not allowed in each other’s room

      because [two of the boys] got into a fight.” Id. at 113. Tschopp’s counsel also

      brought out testimony that I.T.’s nightmares sometimes cause her to imagine

      things.


[7]   Father testified that J.T. had become more withdrawn and “moody” around

      Christmas 2016, and that he first learned about J.T.’s and I.T.’s allegations

      about Tschopp when they informed him through hand-written notes. Id. at

      211. Father testified that he confronted Tschopp about the allegations, and

      Tschopp became angry and left the house that day. Father’s wife, “Donica,”

      testified that she contacted the police. Donica testified that J.T. had become

      more secluded and began layering her clothes around Christmas of 2016. She


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018   Page 4 of 11
       testified that, on the day she called the police, she saw a mark on J.T.’s arm and

       J.T. told Donica that Tschopp had bitten her. On cross-examination, Donica

       testified that the boys in the house understood the house rule that they must

       knock before entering someone else’s bedroom.


[8]    Deputy Jon Samuelson of the LaPorte County Sheriff’s Department testified

       that, on January 12, 2017, he responded to a report from Donica that her step-

       children had been inappropriately touched by their uncle. On cross-

       examination, Tschopp’s lawyer raised questions about the Deputy’s memory.


[9]    In his brief closing argument to the jury, Tschopp’s lawyer pointed out that

       there was no physical evidence or other eyewitnesses to corroborate J.T.’s and

       I.T.’s testimony that Tschopp molested them. He also pointed out that there

       were “a number of people” living in the household but no one other than the

       girls witnessed the alleged molestation. Tr. Vol. III at 78.


[10]   The jury found Tschopp guilty of both Level 1 felony child molesting counts,

       two Level 4 felony child molesting counts, incest, and criminal confinement.

       The jury found Tschopp not guilty of one count on Level 4 felony child

       molesting.5 At Tschopp’s sentencing hearing, the trial court noted that Tschopp

       was represented “by trial counsel with many years of jury trial experience in

       criminal cases. And[,] despite a closing argument of approximately one minute




       5
         Tschopp was found not guilty of the child molestation charge related to I.T. He was found guilty as to all
       charges relating to J.T.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018                  Page 5 of 11
       in length, the Defendant was represented by competent counsel and received

       the effective assistance of counsel throughout this trial.” Id. at 122. The trial

       court sentenced Tschopp to an aggregate sentence of sixty years in the

       Department of Correction. This appeal ensued.



                                    Discussion and Decision
                         Ineffective Assistance of Trial Counsel
[11]   Tschopp asserts that his trial counsel was ineffective for failing to sufficiently

       cross-examine the witnesses against him and for failing to provide a sufficient

       closing argument.6 As the Indiana Supreme Court has observed, we


                review claims of ineffective assistance of counsel under the two
                components set forth in Strickland v. Washington, 466 U.S. 668,
                104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must
                show that counsel’s performance was deficient. Id. at 687, 104
                S.Ct. 2052. This requires a showing that counsel’s representation
                fell below an objective standard of reasonableness, id. at 688, 104
                S.Ct. 2052, 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, id. at 687, 104 S.Ct. 2052. Second, the
                defendant must show that the deficient performance prejudiced
                the defendant. Id. 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. Id. at 694, 104 S.Ct. 2052. A reasonable




       6
         Because he raises a record-based claim of ineffective assistance of trial counsel, Tschopp properly raises the
       claim on direct appeal. See Woods v. State, 701 N.E.2d 1208, 1211-12 (Ind. 1998).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018                     Page 6 of 11
               probability is a probability sufficient to undermine confidence in
               the outcome. Id.


       Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002).


[12]   We will not second-guess trial counsel’s strategy and tactics unless they are so

       unreasonable that they fall outside objective standards. See, e.g., Benefield v.

       State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011); see also Whitener v. State, 696

       N.E.2d 40, 42 (Ind. 1998) (noting the reviewing court “will not speculate as to

       what may or may not have been advantageous trial strategy as counsel should

       be given deference in choosing a trial strategy which, at the time and under the

       circumstances, seems best”). Isolated mistakes, poor strategy, inexperience,

       and instances of bad judgment do not necessarily render representation

       ineffective. Wentz, 766 N.E.2d at 361. And if a claim of ineffective assistance

       of counsel can be disposed of by analyzing the prejudice prong alone, we will

       do so. Benefield, 935 N.E.2d at 797 (citing Wentz, 766 N.E.2d at 360).


[13]   It is well-settled that the nature and extent of cross-examination is a matter of

       strategy delegated to trial counsel. Waldron v. State, 684 N.E.2d 206, 208 (Ind.

       Ct. App. 1997) (citing Osborne v. State, 481 N.E.2d 376, 380 (Ind. 1985)), trans.

       denied. Similarly, “[t]he crafting and delivery of final argument are matters of

       strategy on which counsel is entitled to the presumption of competency.”

       Coleman v. State, 694 N.E.2d 269, 275 (Ind. 1998). “Typically, when reviewing

       a claim of ineffective assistance, the first step is to examine counsel’s

       performance to determine whether it was outside the wide range of

       professionally competent assistance.” Waldron, 684 N.E.2d at 208. However,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018   Page 7 of 11
       here, we need not engage in the first step of the Strickland analysis7 as Tschopp

       has clearly failed to establish the second step, i.e., that counsel’s alleged

       deficient performance prejudiced his case. Id.


[14]   To show prejudice, Tschopp must show a reasonable probability that, but for

       counsel’s alleged errors, the result of his trial would have been different.

       However, there was sufficient evidence to support Tschopp’s child molesting

       and incest convictions,8 even assuming his counsel’s cross-examinations and

       closing statement were deficient. “To sustain a conviction for child molesting

       or incest, proof of the ‘slightest penetration’ of the female sex organ … is

       sufficient,” and penetration may be “inferred from circumstantial evidence.”

       Mastin v. State, 966 N.E.2d 197, 202 (Ind. Ct. App. 2012) (quoting Dinger v.

       State, 540 N.E.2d 587, 590 (Ind. 1990)), trans. denied. Moreover, a molested

       child’s uncorroborated testimony is sufficient to sustain a conviction for

       molesting. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). Here, J.T.

       testified in detail about each of eight separate incidents of molestation by

       Tschopp, including penetration, and her testimony was corroborated in large

       part by I.T.’s testimony. The girls’ testimony was sufficient to support the



       7
          However, we note that defense counsel’s trial strategy appeared to be to emphasize mistaken identity. In
       his response to the State’s motion in limine to limit questions about a possible incident between J.T. and C.J.,
       defense counsel stated that there was “an issue of identity,” given the other people living in the house, and he
       argued for a “right to present evidence that someone other than the Defendant is responsible for these
       allegations.” Tr. Vol. II at 8. A defense strategy of mistaken identity was not below an objective standard of
       reasonableness, and defense counsel’s cross-examinations and closing argument were consistent with that
       strategy. Therefore, we note, without deciding, that Tschopp’s ineffective assistance claim would apparently
       also fail on the first step of the Strickland analysis.
       8
           We address the sufficiency of the evidence to support the criminal confinement conviction below.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018                    Page 8 of 11
       molestation and incest convictions. Thus, Tschopp has failed to show that the

       outcome of his trial would probably have been different if Tschopp’s counsel

       had not allegedly performed deficiently in his cross-examinations and closing

       statement. Wentz, 766 N.E.2d at 360.


                                  Sufficiency of the Evidence
[15]   Tschopp challenges the sufficiency of the evidence to support his conviction for

       criminal confinement. Our standard of review of the sufficiency of the evidence

       is well-settled:


               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.


[16]   To support Tschopp’s conviction for criminal confinement, as a Level 5 felony,

       the State had to prove: (1) Tschopp; (2) knowingly or intentionally; (3)

       confined J.T. and/or I.T. without their consent; (4) and J.T. and/or I.T. were

       less than fourteen years old. I.C. § 35-42-3-3(b). Tschopp does not challenge

       the fact that J.T. and I.T. were less than fourteen years old. However, he

       alleges there was insufficient evidence that he knowingly confined them without


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018   Page 9 of 11
       their consent. “The offense of confinement requires proof of a substantial

       interference with a person’s liberty without the person’s consent.” Cunningham

       v. State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007) (quotation and citation

       omitted). And conviction for confinement may be proper where there is

       evidence that the confinement was “more extensive than necessary to commit

       the main offense.” Kelley v. State, 2 N.E.3d 777, 787 (Ind. Ct. App. 2014).


[17]   Tschopp notes that the only evidence of confinement is I.T.’s testimony that,

       more than once, Tschopp came into her bedroom to wake up J.T. and closed

       their bedroom door by placing a basket or chair in front of it. However, that

       evidence that Tschopp barricaded the way out of the bedroom is sufficient

       evidence that Tschopp confined I.T. and J.T. That evidence established that

       the confinement was more extensive than necessary to commit the crimes of

       child molestation and incest. Moreover, “criminal confinement of a child may

       be proven by the child’s uncorroborated testimony alone “if the jury finds that

       said testimony establishes the guilt of the defendant beyond a reasonable

       doubt.” Hicks v. State, 631 N.E.2d 499, 502 (Ind. Ct. App. 1994), trans. denied.

       Clearly, the jury found I.T.’s testimony credible and sufficient to show guilt

       beyond a reasonable doubt. We will not reweigh that evidence, as Tschopp

       requests. Bailey, 907 N.E.2d at 1005.



                                               Conclusion
[18]   Tschopp has failed to show that the outcome of his trial would probably have

       been any different if his trial counsel had not allegedly performed deficiently in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018   Page 10 of 11
       cross-examinations and closing argument. And the State presented sufficient

       evidence to support Tshopp’s conviction for criminal confinement as a Class 5

       felony.


[19]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-287 | November 2, 2018   Page 11 of 11
