      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              May 30 2017, 9:28 am
      court except for the purpose of establishing
                                                                                  CLERK
      the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                                 Court of Appeals
      estoppel, or the law of the case.                                            and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      David L. Whitsett II                                    Curtis T. Hill, Jr.
      Frankfort, Indiana                                      Attorney General of Indiana
                                                              Monika Prekopa Talbot
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Randal Shawn Dunham,                                    May 30, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              12A02-1606-CR-1357
              v.                                              Appeal from the Clinton Circuit
                                                              Court
      State of Indiana,                                       The Honorable Bradley K. Mohler,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              12C01-1503-F1-289



      Mathias, Judge.


[1]   Randal Shawn Dunham (“Dunham”) was convicted of Level 4 felony child

      molesting after a jury trial in Clinton Circuit Court. Dunham was sentenced to


      Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017             Page 1 of 10
      seven years in the Department of Correction, three years executed and four

      suspended to probation. Dunham appealed, claiming his trial counsel was

      ineffective and the sentencing court abused its discretion.


[2]   We affirm.


                                 Facts and Procedural Posture

[3]   Dunham lived in Frankfort, Indiana, with his girlfriend Renee Knox (“Knox”).

      J.B. is Knox’s daughter from a previous relationship, nine years old at the time

      of trial. J.B. would stay with Dunham and Knox on the weekends and some

      holidays; during the week she stayed with her father and his girlfriend. This

      arrangement was voluntary, not court-ordered, and was not the source of any

      conflict between the families. J.B. stayed with Dunham and Knox over the long

      Thanksgiving weekend in 2014, from Wednesday evening to Sunday evening.


[4]   The following Monday, J.B. complained to her grandmother, her father’s

      mother, that her “privacy” hurt. Tr. Vol. I, p. 105. This was the word her

      grandmother had taught her for “vagina.” Id. J.B.’s complaint was not unusual,

      as she sometimes suffered irritation there which both families ascribed to

      hygiene problems they were working to correct. Accordingly, her father had

      developed a list of questions he would ask J.B. when she complained about her

      “privacy” hurting. Among them, her father would ask, “Has anybody possibly

      touched you there?” Id. at 81. The answer to this question had always been

      “No,” but on that day J.B. answered “Well—” and began to cry. Id. at 82. Her

      father blanched and called his girlfriend into the room.

      Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 2 of 10
[5]   Before her father and his girlfriend, J.B. said that Dunham had lain down

      beside her as she was sleeping on the couch in the living room of Dunham’s

      and Knox’s house. Dunham started to touch her vagina beneath her clothes.

      J.B. tried to get off the couch, but Dunham pulled her back. J.B. was eventually

      able to get off the couch. She went to her room and fell asleep.


[6]   Hearing J.B.’s story, her father went to his mother’s house to ask for advice.

      Before leaving, he told his girlfriend to record J.B.’s story using her cell phone.

      That recording was made but never admitted at trial. J.B.’s grandmother told

      her son to call the police, which he did. J.B., her father, and his girlfriend all

      went together to the Frankfort Police Department and filed a report. Soon after,

      J.B. gave an interview to an investigator from the Department of Child

      Services, which corroborated the recording made by her father’s girlfriend. A

      Frankfort police detective interviewed the adult actors in the case, including

      Dunham, who maintained his innocence.


[7]   On March 26, 2015, the State charged Dunham by information in Clinton

      Circuit Court with Level 1 felony child molesting and Level 4 felony child

      molesting. The court granted the State’s motion to dismiss the Level 1 felony

      charge on October 13, 2015. Dunham was tried before a Clinton County jury

      over two days, from April 26, 2015, to April 27, 2015. J.B. was the State’s first

      witness. Though she could not remember much, she reaffirmed that Dunham

      had touched her vagina on the couch. At the close of the State’s case in chief,

      Dunham moved for judgment on the evidence, which the court denied.



      Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 3 of 10
[8]   Dunham then presented a thorough alibi defense, calling a series of friends and

      relatives to testify to his activities over the Thanksgiving holiday. J.B. had slept

      at Knox’s ex-sister-in-law’s house on Thursday night so Dunham and Knox

      could go Christmas shopping. Dunham had spent most of the long weekend

      celebrating with family or working with friends. Specifically, Dunham kept a

      workshop in a detached garage at his and Knox’s house where he would work

      with his friends on mechanical projects very late into the night. Knox testified

      that J.B. always slept in her bedroom, never on the couch in the living room,

      and was in bed by the time Dunham came in from the garage. Dunham had

      also spent a day driving around the state with friends picking up parts and

      material for future projects. Nevertheless, as the State argued in closing, the jury


              heard . . . testimony not just from the State, but from the defense
              as well . . . that there [were] periods of time when [J.B. was] out
              of sight of other people; when [Dunham was] out of sight of
              other people; when he [came] into the home in the early morning
              hours on several occasions and [Knox was] asleep. . . . There was
              ample time over that period of . . . five days that [Dunham] had
              access to [J.B.].


      Id. at 244.


[9]   The jury found Dunham guilty as charged. On May 23, 2016, Dunham was

      sentenced to seven years in the Department of Correction, three years executed

      and four suspended to probation. Dunham was also required to register as a

      “sexually violent predator.” Ind. Code § 35-38-1-7.5(a). In aggravation, the

      court weighed Dunham’s “very slight” criminal history, J.B. being younger


      Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 4 of 10
       than twelve at the time of the molestation, and Dunham’s position of trust over

       J.B. Appellant’s App. pp. 53-54. In mitigation, the court weighed Dunham’s

       obligation to support his minor children from earlier relationships. The court

       “also consider[ed]” that Dunham’s presentence investigation report rated him a

       “very high” risk to re-offend, id. at 54, but in the context of Dunham’s

       argument that the presentence investigator improperly rested this conclusion

       entirely on Dunham’s failure to “take responsibility” — that is, on his

       profession of innocence — and on the high incidence of drug crimes in

       Dunham’s neighborhood, a fact irrelevant to Dunham’s case. Tr. Vol. II, p. 27.


[10]   Dunham now appeals, claiming that his trial counsel was constitutionally

       ineffective for failing to move for judgment on the evidence a second time after

       the defense rested, and that the sentencing court abused its discretion by

       weighing Dunham’s profession of innocence in aggravation of his sentence.


                                      Discussion and Decision

       I. Ineffective Assistance of Counsel

[11]   The Sixth Amendment to the federal constitution protects the right of an

       accused to receive the effective assistance of counsel for his defense. Strickland v.

       Washington, 466 U.S. 668, 686 (1984). A convicted defendant who received

       ineffective assistance is entitled to a remedy that will “neutralize the taint of

       [the] constitutional violation . . . .” Lafler v. Cooper, 566 U.S. 156, 170 (2012). To

       show ineffective assistance, the defendant must show that counsel’s

       performance fell below an objective standard of professional reasonableness


       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 5 of 10
       (“the performance prong”), and a reasonable probability the outcome would

       have been different but for counsel’s objectively unprofessional errors (“the

       prejudice prong”). French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Failure to

       satisfy either prong causes the whole claim to fail. Id. “Surmounting Strickland’s

       high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).


[12]   Dunham did not surmount it here. Dunham claims his trial counsel was

       ineffective by failing to move for judgment on the evidence a second time after

       the defense rested. Dunham argues that, because the trial court could have

       weighed his alibi evidence against the State’s evidence, while we could not have

       done so on direct review of the sufficiency of the evidence, there was a

       reasonable probability that the outcome would have been different had

       Dunham’s trial counsel invited the trial court to weigh the evidence before

       submitting it to the jury.

[13]   This argument fails. As to the performance prong, Dunham has not approached

       even the most basic showing required to establish that failure to file a second

       motion fell below an objective standard of professional reasonableness. He

       alleges in conclusory fashion that the “prevailing norm” is to move for

       judgment on the evidence after the close of all the evidence, Appellant’s Br. at

       11, see Premo v. Moore, 562 U.S. 115, 122 (2011) (“The question is whether an

       attorney’s representation amounted to incompetence under prevailing

       professional norms . . . .”), but points to no record evidence establishing such a

       norm.



       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 6 of 10
[14]   As to the prejudice prong, Dunham’s argument rests on a misconception of the

       standard applied by trial courts on motions for judgment on the evidence.

       Contrary to Dunham’s argument, the trial court could not have weighed

       Dunham’s alibi evidence against the State’s evidence. On a motion for

       judgment on the evidence, “[a] trial court may not invade the province of the

       jury by weighing the evidence presented or the credibility of witnesses.” Garcia

       v. State, 979 N.E.2d 156, 158 (Ind. Ct. App. 2012) (citing State v. Taylor, 863

       N.E.2d 917, 919 (Ind. Ct. App. 2007)). The motion should be granted only if

       “the record is devoid of evidence on one or more elements of the offense[,] or . .

       . the evidence presented is without conflict and subject to only one inference,

       which is favorable to the defendant.” Id. at 157.


[15]   This is basically indistinguishable from our standard on direct review of the

       sufficiency of the evidence. See Farris v. State, 753 N.E.2d 641, 647 (Ind. 2001)

       (“We will not reweigh the evidence or assess the credibility of witnesses.

       Rather, we look [only] to the evidence and reasonable inferences [from it] that

       support the verdict . . . .”). In other words, with respect to a motion for

       judgment on the evidence, the trial court would have been in precisely the same

       position after Dunham rested as it was after the State rested, no matter the

       exculpatory value of whatever evidence Dunham presented in between. Failure

       to move a second time thus cannot have prejudiced Dunham.

[16]   It is true that, in ruling on motions to correct error following a jury verdict, the

       “thirteenth juror” principle imposes on trial courts a duty to weigh conflicting

       evidence. State v. Taylor, 863 N.E.2d 917, 920 (Ind. Ct. App. 2007). However,

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 7 of 10
       Dunham’s trial counsel never moved to correct error after the jury verdict, and

       Dunham does not claim on appeal that failure to do so was objectively

       professionally unreasonable. Even if he had, he could not have pointed to any

       record evidence in support of such a claim.

[17]   For these reasons, Dunham’s ineffective assistance claim fails. We note that

       any post-conviction challenge to his lawyer’s trial performance is now

       precluded. Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998).


       II. Abuse of Discretion at Sentencing

[18]   We may review a sentence for abuse of the sentencing court’s discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). Claims for “failure to

       ‘properly weigh’” aggravating and mitigating factors lie beyond such review, id.

       at 491, but a sentencing court abuses its discretion by applying an aggravating

       factor that is “improper as a matter of law.” Id. Where a defendant maintains

       his innocence in good faith, it is improper as a matter of law to weigh that fact

       in aggravation of his sentence. Sloan v. State, 16 N.E.3d 1018, 1027–28 (Ind. Ct.

       App. 2014); Kien v. State, 782 N.E.2d 398, 412 (Ind. Ct. App. 2003), trans.

       denied. However, even if a sentencing court has improperly applied an

       aggravator, we will uphold a sentence greater than the advisory if supported by

       proper aggravators and we are confident the sentence would have been the

       same had the improper aggravator not been found. Baumholser v. State, 62

       N.E.3d 411, 417 (Ind. Ct. App 2016), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 8 of 10
[19]   Dunham claims the sentencing court improperly weighed his continuing

       profession of innocence in aggravation of his sentence. Assuming without

       deciding that Dunham did so in good faith, still Dunham is not entitled to

       relief. Both from the bench and in its sentencing order, the court clearly noted

       which factors it found in aggravation: Dunham’s criminal history, Appellant’s

       App. p. 53; Tr. Vol. II, p. 28; the fact that J.B. was younger than twelve at the

       time of the molestation, Appellant’s App. p. 54, Tr. Vol. II, p. 29; and

       Dunham’s position of trust over J.B. Appellant’s App. p. 54; Tr. Vol. II, p. 29.

       From the bench, the court then “additionally . . . note[d],” Tr. Vol. II, p. 29,

       and in its order “also consider[ed],” Appellant’s App. p. 54, the high risk of re-

       offense given in the presentence investigation report predicated on Dunham’s

       profession of innocence. The court expressly considered this fact in the context

       of defense counsel’s argument that maintaining innocence cannot properly

       aggravate a sentence. Appellant’s App. p. 54; Tr. Vol. II, pp. 29-30.


[20]   Thus, it is not even clear that that the court counted Dunham’s profession of

       innocence against him at all. The court was careful to separate out the re-

       offense risk assessment from its list of aggravating factors, and to note the

       impropriety of maintaining innocence as an aggravator. Moreover, Dunham’s

       seven-year sentence was enhanced by one year above the six-year advisory for

       Level 4 felonies. See I.C. § 35-50-2-5.5 (level 4 felony sentencing). Given the

       presence of three other, unquestionably valid aggravators — two major (the

       victim’s age and the perpetrator’s position of trust) and one minor (Dunham’s

       criminal history) — and the little aggravating weight, if any, given by the court


       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 9 of 10
       to the re-offense risk assessment, we are confident that Dunham’s lightly

       enhanced sentence would have been the same even without any consideration

       whatever of the presentence investigation report.


                                                 Conclusion

[21]   Dunham’s trial counsel was not ineffective, and the sentencing court did not

       abuse its discretion. The judgment against Dunham is therefore affirmed.

[22]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1357 | May 30, 2017   Page 10 of 10
