MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Jun 28 2019, 10:48 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Charles E. Justise, Sr.                                  Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles E. Justise, Sr.,                                 June 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-1420
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1601-PC-3703



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019                  Page 1 of 10
[1]   After his Class A felony child molesting and Class C felony child molesting

      convictions were affirmed on direct appeal,1 Charles E. Justise, Sr. (“Justise”)

      filed a petition for post-conviction relief in Marion Superior Court. The post-

      conviction court denied Justise’s petition, and Justise appeals pro se.2

      Concluding that his claim of newly discovered evidence does not warrant a new

      trial and that his remaining claims are barred by the doctrines of res judicata

      and waiver, we affirm.


                                   Facts and Procedural History
[2]   In our memorandum decision on Justise’s direct appeal, we set forth the facts

      underlying his conviction as follows:

               On June 21, 2006, twelve-year-old D.B. spent the night at the
               home of Justise, her father, and Shawna Winston [“Winston”],
               her father's girlfriend. Justise and D.B. watched a movie, and
               D.B. fell asleep on a pallet on the floor in an upstairs bedroom.
               She awoke in the middle of the night when she felt Justise
               “feeling on her.” Tr. p. 63. Justise had pulled up D.B.'s shirt and
               bra and was touching her breasts with his lips. Justise told D.B.
               to go downstairs with him, and she did. Justise bent D.B. over
               one of the living room couches, removed her pants, and rubbed
               his penis against the cheeks of her buttocks for two to three
               minutes. Justise then moved D.B. to another couch where he got
               on top of her and tried to place his penis inside her vagina. There




      1
       On June 22, 2009, Justise appealed his sentence and conviction, but this court later dismissed the appeal
      with prejudice for failure to comply with the appellate rules. On September 6, 2011, we allowed a belated
      appeal.
      2
       Justise filed a motion not to publish, which we interpret as a motion to make the case confidential as
      opposed to the publication of this opinion. By separate order, we deny this motion.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019                     Page 2 of 10
        was no penetration. Justise then placed D.B. on his lap, placed
        his finger inside her vagina, and moved it around in circles.
        Justise told D.B. that it was going to “tingle a little bit.” Tr. p. 71.
        Justise raised D.B. off of his lap and told her to “remember [that]
        this never happened.” Tr. p. 72. D.B. went upstairs and cried.

        A few days later, D.B. told both her aunt, Ashley Jackson
        [“Jackson”], and Winston what had happened. Winston
        informed D.B.'s mother about the molestation. When D.B.
        confirmed to her mother what had occurred, D.B.'s mother
        contacted the Indianapolis Metropolitan Police Department.
        D.B. was interviewed at Child Protective Services and examined
        by Methodist Hospital Sexual Assault Nurse Linda Kelley
        [“Kelley”]. Kelley noticed that D.B. showed notches or clefts on
        her hymen that could have been caused by something inserted
        into her vagina.

        Detective Gregory Norris was assigned to the case. During his
        investigation, the detective downloaded recordings of telephone
        calls between Justise and Winston and Justise and D.B. while
        Justise was incarcerated in the Marion County Jail on other
        charges during June and July 2006. Many of the telephone calls
        made during that time period were not recorded. According to
        Buzz Michael, the keeper of inmate phone records at the Marion
        County Jail, the system failed to download approximately 90,000
        phone calls due to a system wide failure. The logs indicated that
        the calls had been made, but the recordings did not exist.
        Michael explained that there was “no rhyme or reason behind
        which calls were lost and which calls were kept.” Tr. of Pre-trial
        Hearing p. 17.

        In October 2006, the State charged Justise with two counts of
        child molesting as class A felonies, three counts of sexual
        misconduct with a minor as class B felonies, child molesting as a
        class C felony, and two counts of sexual misconduct with a
        minor as class C felonies. Justise represented himself at the
        October 2008 trial. The State introduced into evidence recordings
        of telephone calls between Justise and D.B., which were recorded
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019   Page 3 of 10
              while Justise was incarcerated in the Marion County Jail. In one
              of the telephone calls, D.B. confronted Justise about touching her
              and placing his finger in her vagina. She told him that she was
              not lying and quoted his comment to her that his finger in her
              vagina would “tingle a little bit.” Ex. 18 p. 7.

              Also during trial, Justise wanted to question Jackson about a
              phone conversation she had with D.B. According to Justise, D.B.
              told her aunt that she fabricated the molestation because she
              wanted to hide the fact that she had sexual intercourse with a boy
              name Jason. Justise wanted to introduce into evidence D.B.'s
              prior sexual history, but the trial court refused to allow him to do
              so because this evidence violated Indiana Evidence Rule 412 and
              was therefore inadmissible. Justise denied molesting his
              daughter.

              A jury convicted Justise of the two counts of child molesting as
              class A felonies and one count of child molesting as a class C
              felony. At the sentencing hearing, the trial court merged the two
              class A felony convictions for double jeopardy purposes and
              sentenced Justise to forty-five years for the class A felony, and six
              years for the class C felony, with the sentences to be served
              consecutively, for an aggregate term of fifty-one years. Justise
              received permission to file a belated appeal in September 2011.

      Justise v. State, No. 49A02-1105-CR-408, slip op. at 1–2 (Ind. Ct. App. May 22,

      2012), trans. denied.


[3]   On direct appeal, Justise presented three issues: (1) whether his due process

      rights were violated when the State failed to disclose exculpatory evidence in

      violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) whether the trial court

      erred in refusing to allow Justise to impeach the victim with evidence of her

      prior sexual history; and (3) whether there was sufficient evidence to support his

      conviction. A panel of this court rejected Justise’s claims, holding: (1) there was

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019   Page 4 of 10
      no evidence for the prosecution to suppress because the phone calls which

      Justise complains of were not recorded, and if there is no evidence to suppress,

      there is no Brady violation; (2) the victim’s alleged sexual history does not fall

      into one of the enumerated exceptions of Rule 412, and therefore, the trial court

      did not err by excluding the challenged evidence under Rule 412; and (3)

      Justise’s argument regarding the victim’s testimony at trial was nothing more

      than an invitation for the court to reweigh the evidence, which the court cannot

      do. Id. at *2–3. Justise filed a petition to transfer his case to the Indiana

      Supreme Court, but that court denied the petition.

[4]   On January 22, 2016, Justise filed a pro se petition for post-conviction relief. In

      his petition, Justise claimed that (1) the State committed Brady violations; (2) he

      was denied the effective assistance of trial counsel; and (3) there was newly

      discovered evidence. On May 1, 2017, Justise amended his petition to add a

      claim of prosecutorial misconduct. The post-conviction court held an

      evidentiary hearing on September 21, 2017. Both parties then submitted

      proposed findings of fact and conclusions of law, and on May 18, 2018, the

      post-conviction court issued its findings of fact and conclusions of law denying

      Justise’s petition for post-conviction relief. The post-conviction court concluded

      that D.B. acknowledged the allegations of inappropriate sexual contact she

      made against Justise, and D.B. indicated her testimony at trial was untruthful

      and that Justise had never touched her. The court, however, did not find D.B.

      credible and assigned no weight to her testimony. Further, the court held that




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019   Page 5 of 10
      the issue of D.B.’s recantation was not a new issue, as it was addressed several

      times in Justise’s Court of Appeals decision. Justise now appeals.


                                         Standard of Review

[5]   Our standard of review of claims that a post-conviction court erred in denying

      relief is well settled. That is, post-conviction proceedings are not “super

      appeals” through which convicted persons can raise issues they failed to raise at

      trial or on direct appeal. Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App.

      2014), trans. denied. Instead, post-conviction proceedings afford petitioners a

      limited opportunity to raise issues that were unavailable or unknown at trial

      and on direct appeal. Id. A post-conviction petitioner bears the burden of

      establishing grounds for relief by a preponderance of the evidence. Id. Thus, on

      appeal from the denial of post-conviction relief, the petitioner stands in the

      position of one appealing from a negative judgment. Id. To prevail on appeal

      from the denial of post-conviction relief, the petitioner must show that the

      evidence as a whole leads unerringly and unmistakably to a conclusion opposite

      that reached by the post-conviction court. Id.


[6]   As required by Indiana Post-Conviction Rule 1(6), the post-conviction court

      entered findings of fact and conclusions of law. Therefore, we must determine if

      the court's findings are sufficient to support its judgment. Manzano, 12 N.E.3d

      at 325. We review the post-conviction court’s factual findings under a clearly

      erroneous standard, i.e., we will not reweigh the evidence or judge the

      credibility of witnesses, and we will consider only the probative evidence and


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019   Page 6 of 10
      reasonable inferences flowing therefrom that support the post-conviction court’s

      decision. We do not defer to the post-conviction court’s legal conclusions,

      which are reviewed de novo. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002).


                                     Discussion and Decision
[7]   First, Justise complains that the post-conviction court failed to address his Brady

      violation claim and his claim that the trial court should have admitted evidence

      that he contends would have impeached Jackson’s testimony. The State asserts

      that these claims are barred by res judicata or waiver. The doctrine of res

      judicata “prevents the repetitious litigation of that which is essentially the same

      dispute.” State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). Issues that were

      raised and decided on direct appeal are res judicata and may not be litigated

      again on post-conviction review. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.

      2000). “[W]here an issue, although differently designated, was previously

      considered and determined upon a criminal defendant’s direct appeal, the State

      may defend against defendant's post-conviction relief petition on grounds of

      prior adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047, 1049

      (Ind. 1984).


[8]   On direct appeal, Justise unsuccessfully argued that the State committed a

      Brady violation with respect to the phone calls between himself and the victim.

      Here, Justise raises the same Brady violation claim, and it is therefore barred by

      res judicata. See Ben-Yisrayl, 738 N.E.2d at 259.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019   Page 7 of 10
[9]    Similarly, on direct appeal, Justise argued that the trial court should have

       allowed him to admit impeachment evidence concerning the victim’s prior

       sexual history.3 Justise now argues that, “Jackson should have been allowed to

       testify as to D.B. telling her that Justise never touched her. Proper foundation

       was laid for impeachment.” Appellant’s Br. at 3. Issues that were known and

       available, but not raised, on direct appeal are waived, or procedurally defaulted,

       and may not be raised in the post-conviction process. Bunch v. State, 778 N.E.2d

       1285, 1289 (Ind. 2002). Justise could have raised this issue on direct appeal but

       chose not to. Therefore, the claim is waived.


[10]   Finally, Justise argues that the post-conviction court incorrectly rejected relief

       on his claim of newly discovered evidence. At the post-conviction hearing, D.B.

       testified under oath that she had never been inappropriately touched by Justise

       and that Justise never did “anything physical” with her. Tr. p. 14.

[11]   In considering whether to set aside a conviction and grant a new trial on the

       basis of newly discovered evidence, Indiana courts apply a nine-part test:


                New evidence will mandate a new trial only when the defendant
                demonstrates that: (1) the evidence has been discovered since the
                trial; (2) it is material and relevant; (3) it is not cumulative; (4) it
                is not merely impeaching; (5) it is not privileged or incompetent;
                (6) due diligence was used to discover it in time for trial; (7) the
                evidence is worthy of credit; (8) it can be produced upon a retrial




       3
         Justise does not appeal the denial of post-conviction relief on the grounds of ineffective assistance of counsel
       that he raised in his petition.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019                        Page 8 of 10
               of the case; and (9) it will probably produce a different result at
               retrial.


       Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010) (quoting Taylor v. State, 840

       N.E.2d 324, 329–30 (Ind. 2006)). These nine factors are analyzed with care, “as

       ‘the basis for newly discovered evidence should be received with great caution

       and the alleged new evidence carefully scrutinized.’” Id. (quoting Taylor, 840

       N.E.2d at 330).


[12]   Here, the post-conviction court concluded that the admission of the victim’s

       testimony at a new trial would be offered as merely impeaching evidence. We

       agree. D.B.’s testimony at the post-conviction hearing was not new substantive

       evidence but was merely impeaching of what she had previously testified under

       oath. This testimony at the evidentiary hearing only serves to undermine her own

       credibility, and thus, Justise has failed to establish the fourth prong of the test.


[13]   The post-conviction court also concluded that D.B.’s testimony at the post-

       conviction relief evidentiary hearing was not worthy of credit. The court had

       the opportunity to hear D.B. testify multiple times regarding the molestation.

       During her trial testimony which resulted in Justise’s convictions, D.B. did not

       waver in her accusations. Additionally, the court concluded that D.B. related

       the same facts she testified to at trial to a forensic interviewer, Linnett Garcia,

       who described D.B. as “very forthcoming.” Appellant’s App. Vol. 2, p. 238.

       D.B. remained consistent in her accusation against Justise during a pretrial

       deposition. During a recorded pretrial jail conversation between D.B. and

       Justise, D.B. asked Justise specifically about the molestation. Id. In sum, the
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019   Page 9 of 10
       court found D.B.’s testimony at the evidentiary hearing not worthy of credit as

       D.B.’s prior testimony was too clear, precise, and forthcoming to ignore now.

       Thus, Justise had failed to meet his burden of proving the seventh prong of the

       newly discovered evidence test. We agree with the trial court that D.B.’s

       testimony is not worthy of credit.


[14]   Therefore, the alleged newly discovered evidence is not supportive of a different

       result at retrial, and there is no merit to Justise’s claims. Justise’s argument to

       the contrary is nothing more than a request for us to reweigh the evidence on

       appeal, which we will not do.


                                                 Conclusion
[15]   The issues Justise raised in his petition for post-conviction relief were either

       addressed on direct appeal, and therefore res judicata, or known and available

       to him at the time of his direct appeal, and therefore waived. Furthermore,

       Justise is not entitled to a new trial based on his claim of newly discovered

       evidence because D.B.’s recantation of her trial testimony was merely

       impeaching and because the post-conviction court determined that her

       testimony at the post-conviction evidentiary hearing was not credible.

       Accordingly, we affirm the court’s denial of Justise’s petition for post-

       conviction relief.


[16]   Affirmed.


       May, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019   Page 10 of 10
