      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Feb 04 2015, 9:46 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE:                                         ATTORNEYS FOR APPELLEE
      Jason E. Morales                                          Gregory F. Zoeller
      New Castle, Indiana                                       Attorney General of Indiana
                                                                Cynthia L. Ploughe
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jason E. Morales,                                        February 4, 2015

      Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                               82A01-1405-PC-206
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court.
                                                               The Honorable David D. Kiely,
      State of Indiana,                                        Judge.
      Appellee-Respondent.                                     The Honorable Kelli E. Fink,
                                                               Magistrate.
                                                               Cause No. 82C01-1208-PC-18




      Darden, Senior Judge


                                       Statement of the Case
[1]   Jason E. Morales appeals from the post-conviction court’s order denying his

      petition for post-conviction relief from his convictions of two counts of sexual


      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 1 of 13
                                                                        1
      misconduct with a minor, each as a Class B felony. Morales contends that the

      post-conviction court erred by concluding that he could not challenge on Equal

      Protection Clause grounds the constitutionality of Indiana Code section 35-42-

      4-9 (2007), and that he had failed to establish his claims alleging ineffective

      assistance of trial counsel. We affirm.


                                  Facts and Procedural History
[2]   The facts and procedural history supporting Morales’ convictions were set out

      as follows in our memorandum opinion deciding Morales’ direct appeal:

                 On February 8, 2009, fourteen-year-old V.R. spent the night with her
                 cousin Kristen Fifer at the home Fifer shared with her fiancé, Morales.
                 Despite knowing that V.R. was only fourteen years old, Morales
                 prepared alcoholic drinks for V.R. and Fifer. V.R. and Fifer drank
                 these drinks while watching a movie and “playing on the computer.”
                 Tr. p. 194. After the movie was over, Fifer went to bed and V.R.
                 continued “playing on the computer.” Tr. p. 199. At some point,
                 V.R. dropped a glass of water that she was drinking. Morales knelt
                 down next to V.R. and helped clean up the broken glass. While
                 cleaning up the broken glass, Morales “leaned in to kiss” V.R. Tr. p.
                 199. Morales “kept trying to kiss” V.R. despite her telling him that she
                 “didn’t want to kiss him.” Tr. p. 200.


                 Morales asked V.R. to help him put clean sheets on the bed in the
                 spare bedroom in which V.R. was going to sleep. While in the spare
                 bedroom, Morales “laid [V.R.] on the bed and started kissing [her]
                 again.” Tr. p. 201. V.R. subsequently testified that Morales stuck “his
                 tongue in [her] mouth while kissing her.” Tr. p. 202. At some point,
                 Morales also put his hand down V.R.’s pants, under her underwear,
                 and “stuck his finger in [V.R.’s] vagina.” Tr. p. 203. Throughout this



      1
          Ind. Code §35-42-4-9 (2007).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 2 of 13
                encounter, V.R. repeatedly told Morales, “I don't want to do this and
                this is wrong, stop.” Tr. pp. 203-04.


                Morales took V.R. to work with him and then to a gas station in
                Kentucky to buy cigarettes. Upon returning home, Morales helped
                V.R. back into the spare bedroom where he “laid [her] down . . . took
                [her] pants off and then pulled [her] underwear down and lifted [her]
                shirt up.” Tr. p. 206. Morales “put his hands under [V.R.’s] bra,”
                “touched [her] boobs,” and “tried to have sex with [her].” Tr. p. 206.
                After Morales was not able to successfully complete sexual intercourse
                with V.R., he “took his clothes off and . . . [told V.R.] to put [her]
                mouth on his penis and suck it.” Tr. p. 206. Morales “started pushing
                [V.R.’s] head towards” his penis and when V.R. objected, told her to
                “just do it.” Tr. p. 206. Eventually, Morales “pushed [V.R.’s] head
                down onto [his penis] and . . . made [her] suck it.” Tr. p. 206. In
                addition, at some point, Morales “put his mouth on [V.R.’s] vagina
                and started licking.” Tr. p. 207.


                On February 17, 2009, the State charged Morales with three counts of
                Class B felony sexual misconduct with a minor. At trial, V.R. testified
                that while she could remember the events that took place, she could
                not remember the exact timing sequence in which these events
                occurred because she was “blacking out.” Tr. p. 207. V.R. further
                testified that although she had been drunk before, this time felt
                different because she “had never blacked out or not known what [she]
                was doing.” Tr. p. 208. At the conclusion of trial, the jury found
                Morales guilty as charged. On April 27, 2010, the trial court sentenced
                Morales to three concurrent eighteen-year terms of incarceration.


      Morales v. State, No. 82A04-1005-CR-311 (Ind. Ct. App. April 20, 2011), trans.

      denied.


[3]   After Morales’ convictions and sentences were affirmed on appeal, he filed a

      motion for post-conviction placement in a county forensic diversion program.

      The trial court denied Morales’ motion on the basis that the program would not


      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 3 of 13
      accept sex offenders. Morales filed a petition for judicial review of the

      program’s acceptance criteria. The trial court denied Morales’ petition. On

      appeal, we affirmed the trial court’s denial of his petition. Morales v. State, 991

      N.E.2d 619 (Ind. Ct. App. 2013), aff’d on reh’g, Morales v. State, 4 N.E.3d 668

      (Ind. Ct. App. 2013).


[4]   Morales filed a pro se petition for post-conviction relief on July 18, 2012. On

      August 9, 2012, the State filed its answer along with a motion to proceed by

      affidavit. The State’s motion was granted on August 29, 2012, and the trial

      court ordered the parties to submit the case by affidavit. Morales requested and

      was granted permission to submit a supplement to his petition for post-

      conviction relief on January 29, 2013. Morales’ petition for post-conviction

      relief was denied by the post-conviction court on April 23, 2014. Morales now

      appeals.


                                   Discussion and Decision
                                         Standard of Review
[5]   Our Supreme Court has set forth the standard of review for post-conviction

      proceedings as follows:

              The petitioner in a post-conviction proceeding bears the burden of
              establishing grounds for relief by a preponderance of the evidence.
              When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment. To prevail on appeal from the denial of post-conviction
              relief, a petitioner must show that the evidence as a whole leads
              unerringly and unmistakably to a conclusion opposite that reached by
              the post-conviction court. Further, the post-conviction court in this

      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 4 of 13
              case made findings of fact and conclusions of law in accordance with
              Indiana Post-Conviction Rule 1(6). Although we do not defer to the
              post-conviction court’s legal conclusions, ‘[a] post-conviction court’s
              findings and judgment will be reversed only upon a showing of clear
              error—that which leaves us with a definite and firm conviction that a
              mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.
              2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (most internal quotations

      and citations omitted).


                                                        I.
[6]   Morales contends that the post-conviction court erred by concluding that his

      claim alleging a violation of the Equal Protection Clause of the Fourteenth

      Amendment of the United States Constitution and the Privileges and

      Immunities Clause of Article I, Section 23 of the Indiana Constitution was

      waived. In particular, he argued that the enhancement of his offense from a

      Class C felony to a Class B felony based upon the fact that he was more than

      twenty-one years old when he committed the alleged offense, violated the state

      and federal constitutions. For reasons we explain below, we agree with the

      post-conviction court that his claim has been waived. Waiver notwithstanding,

      his claim fails because the issue has already been decided adversely to his

      contention.


[7]   We note that in his brief, Morales acknowledges that this argument was not

      presented at trial or on direct appeal. “The post-conviction procedures do not

      provide a petitioner with a ‘super-appeal’ or opportunity to consider


      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 5 of 13
      freestanding claims that the original trial court committed error. Such claims

      are available only on direct appeal.” Lambert v. State, 743 N.E.2d 719, 726 (Ind.

      2001). “In post-conviction proceedings, complaints that something went awry

      at trial are generally cognizable only when they show deprivation of the right to

      effective counsel or issues demonstrably unavailable at the time of trial or direct

      appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002).


[8]   Even though no objection was made at trial, Morales could have argued the

      constitutionality of the statute on direct appeal. “Generally, a challenge to the

      constitutionality of a criminal statute must be raised by a motion to dismiss

      prior to trial, and the failure to do so waives the issue on appeal.” Donaldson v.

      State, 904 N.E.2d 294, 298 (Ind. Ct. App. 2009) (quoting Johnson v. State, 879

      N.E.2d 649, 654 (Ind. Ct. App. 2008)). However, some cases have considered

      the constitutionality of statutes even where the defendant failed to file a motion

      to dismiss prior to trial. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct.

      App. 2008). The decision to consider the issue relies on cases holding that “the

      constitutionality of a statute may be raised at any stage of the proceeding

      including raising the issue sua sponte by this Court.” Id. (quoting Morse v. State,

      593 N.E.2d 194, 197 (Ind. 1992)). Therefore, Morales could have raised this

      issue on direct appeal, but chose not to do so. Morales also does not raise this

      issue in the context of a claim of ineffective assistance of counsel or newly

      discovered evidence. Because the issue was available at trial and on direct

      appeal, the issue is waived for purposes of post-conviction proceedings, and the

      post-conviction court did not err.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 6 of 13
[9]    We note, additionally, that Morales’ claimed error has been decided against

       him. In Cowart v. State, 756 N.E.2d 581, 586-87 (Ind. Ct. App. 2001), trans.

       denied, an appeal from child molesting convictions, we held that a more severe

       penalty could be based upon an age classification without offending either the

       state or federal constitution as long as the classification is rationally related to a

       legitimate state interest and it is applicable and equally available to all persons

       similarly situated. The post-conviction court did not err.


                                                              II.
[10]   Morales also presents several arguments alleging that he received ineffective
                                            2
       assistance of trial counsel. The standard of review for those claims has been set

       forth by the Supreme Court as follows:

                When evaluating an ineffective assistance of counsel claim, we apply
                the two-part test articulated in Strickland v. Washington, 466 U.S. 668,
                104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v. State, 907
                N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, “the
                defendant must show deficient performance: representation that fell
                below an objective standard of reasonableness, committing errors so
                serious that the defendant did not have the ‘counsel’ guaranteed by the
                Sixth Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)
                (citing Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
                second prong, “the defendant must show prejudice: a reasonable
                probability (i.e. a probability sufficient to undermine confidence in the
                outcome) that, but for counsel’s errors, the result of the proceeding




       2
        Morales raised claims of ineffective assistance of appellate counsel in his petition for post-conviction relief.
       The post-conviction court did not grant Morales relief on those grounds. Morales’ arguments on appeal
       address only his claims of ineffective assistance of trial counsel.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015               Page 7 of 13
               would have been different.” Id. (citing Strickland, 466 U.S. at 694, 104
               S. Ct. 2052).


       Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). “Although the performance

       prong and the prejudice prong are separate inquiries, failure to satisfy either

       prong will cause the claim to fail.”             Henley v. State, 881 N.E.2d 639, 645 (Ind.

       2008). “If we can easily dismiss an ineffective assistance claim based upon the

       prejudice prong, we may do so without addressing whether counsel’s

       performance was deficient.” Id. “Most ineffective assistance of counsel claims

       can be resolved by a prejudice inquiry alone.” Id.


[11]   Morales claims that he received ineffective assistance of trial counsel because 1)

       counsel failed to object to the admission of the victim’s underwear into

       evidence, 2) did not object to the introduction of DNA evidence, and 3) failed

       to present expert testimony to challenge the victim’s claim that she suffered

       periodical “blackouts” the evening the crimes occurred. Regarding the

       admission of the victim’s underwear, the post-conviction court concluded that

       trial counsel made a strategic decision not to make additional objections to that

       evidence, and that Morales’ claim that there was an insufficient link between

       the underwear and the victim had more to do with the weight to be given the

       evidence than it did with its admissibility. Regarding the DNA evidence, the

       post-conviction court determined that the evidence was relevant to the charges

       and that trial counsel’s decision not to object to the evidence was likely a

       strategic one because the DNA evidence did not establish a direct link to


       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 8 of 13
       Morales, thus leaving open an inference that Morales did not commit the

       offenses. Regarding the expert witness testimony, the post-conviction court

       concluded that since the victim was not old enough to consent to the sexual

       activity, a challenge to the victim’s lucidity was irrelevant to the crime charged,

       thus trial counsel’s performance was not deficient.


[12]   Before we address the specific claims of error, we note that even had trial

       counsel succeeded in excluding the challenged evidence, the remaining

       evidence against Morales overwhelmingly supported the jury’s verdict.

       Consequently, even if trial counsel’s performance was found to be deficient in

       failing to make certain objections, Morales can establish no prejudice and his

       claims of ineffective assistance of counsel fail, nonetheless. The victim testified

       at trial that Morales inserted his finger into her vagina; he pushed her mouth

       onto his penis; and, he placed his mouth on her vagina and began licking it.

       The victim’s testimony was corroborated by a video recording Morales made of

       the victim, who was intoxicated after being given alcohol by Morales, and

       spoke using risqué and suggestive language. Morales’ voice can be heard on the

       video asking the victim inappropriate questions.


[13]   Additionally, a short time after the crimes were committed, Morales sent two

       text messages in which he offered an apology to the victim, and informed his

       girlfriend, the victim’s cousin, that he had done something while he was drunk

       that he could not live with. Morales admitted at trial that he had attempted to

       commit suicide by ingesting four boxes worth of Benadryl in combination with



       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 9 of 13
       alcohol. Therefore, even without the challenged evidence it is unlikely that the

       result of the trial would have been different.


[14]   Turning now to the specific claims, Morales contends that the post-conviction

       court erred because the DNA evidence was inadmissible, citing Deloney v. State,

       938 N.E.2d 724 (Ind. Ct. App. 2010), trans. denied, in support of his position.

       He argues that had trial counsel objected to the DNA evidence, the objection

       would have been sustained. Therefore, he argues that the post-conviction court

       erred by denying this claim of ineffective assistance of counsel.


[15]   “[T]o prevail on a claim of ineffective assistance due to the failure to object, the

       defendant must show an objection would have been sustained if made.”

       Benefield v. State, 945 N.E.2d 791, 799 (Ind. 2011) (quoting Overstreet v. State, 877

       N.E.2d 144, 155 (Ind. 2007)). Deloney does hold that “DNA that does not

       constitute a match or is not accompanied by statistical data regarding the

       probability of a defendant’s contribution to a mixed sample is not relevant,

       Evid. R. 402, and should not be admitted.” 938 N.E.2d at 730. However, the

       DNA was relevant in the present case. A forensic DNA analyst testified at trial

       that although she found a small amount of male DNA in the cuttings from the

       victim’s underwear, the amount was too small to obtain a DNA profile for the

       contributor. The fourteen-year-old victim testified that she had packed her own

       backpack for the overnight stay with a friend the night prior to the night she

       stayed with her cousin, and after the incident, that she packed her own bag to

       go to the hospital for an examination. There were no male friends with her on

       the night in question, meaning that Morales was the only male with her during

       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 10 of 13
       the relevant time period. Trial counsel would not have been successful had he

       objected to the admissibility of the DNA evidence.


[16]   Similarly, trial counsel would not have been successful had he objected to the

       admission of the underwear. Morales claims that there was an inadequate link

       between the underwear and the victim. The victim testified that the morning

       after the crimes occurred she showered, changed her underwear, and put on the

       same clothes she had worn the day before. She placed the previously worn

       underwear in her backpack. The victim testified at trial that the underwear

       collected as evidence were the same underwear she had taken off the morning

       after the crimes occurred. Therefore, trial counsel would not have been

       successful had he objected to the admission of the evidence on the ground of

       relevancy, and any challenge to the link between the victim and the underwear

       that was tested would be relevant to the weight of the evidence, not its

       admissibility.


[17]   Trial counsel’s decision not to object to the DNA evidence and underwear

       evidence can be explained as a strategic decision. Morales’ trial counsel used

       that evidence to challenge the victim’s credibility on cross-examination and

       during the closing argument. On review, we “will not lightly speculate as to

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

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

       under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind.

       1998). The post-conviction court did not err in denying Morales relief.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 11 of 13
[18]   Morales also challenges trial counsel’s decision not to call an expert to testify at

       trial to challenge the victim’s testimony that she experienced blackouts on the

       night of the crimes. The victim had testified at trial that she was intoxicated

       that night and that she experienced blackouts periodically. Morales, however,

       also testified that he experienced blackouts on the night in question. We note

       that trial counsel cross-examined the victim on that claim. Had trial counsel

       called an expert to testify at trial to discredit the victim’s claim, the expert’s

       testimony might have worked to discredit Morales’ similar claim of

       intoxication. The jury might have concluded that the victim remembered the

       perpetration of unwanted sexual acts on her, and that Morales feigned a loss of

       memory on those events he wanted to forget. Thus, trial counsel’s decision

       involved one of strategy. “A decision regarding what witnesses to call is a

       matter of trial strategy which an appellate court will not second-guess . . .

       although a failure to call a useful witness can constitute deficient performance. .

       . .” Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). Here, because expert

       testimony might have served to discredit Morales’ own testimony concerning

       his own blackouts, we cannot say that trial counsel erred by failing to call a

       useful witness. The post-conviction court did not err by denying Morales’ claim

       of ineffective assistance of trial counsel on the basis of trial strategy.


                                                Conclusion
[19]   In light of the foregoing, we affirm the post-conviction court’s decision.


[20]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 12 of 13
[21]   Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-PC-206 | February 4, 2015   Page 13 of 13
