MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Feb 21 2017, 9:51 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
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Deidre R. Eltzroth                                       Lyubov Gore
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry Lillard,                                           February 21, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1608-PC-1879
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Respondent                                      Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-0402-PC-23764



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 1 of 10
[1]   Larry Lillard appeals the judgment of the post-conviction court, which denied

      his petition for post-conviction relief. He argues that he received the ineffective

      assistance of trial and appellate counsel. Finding that he has not made the

      requisite showing that he suffered any prejudice, we affirm.


                                                     Facts
[2]   On July 28, 2005, Lillard was found guilty of Class A felony child molesting

      and was determined to be a habitual offender. The underlying facts are as

      follows: “Lillard was married to the aunt of C.S. and lived in Marion County.

      In 2002, when C.S. was eleven years old, Lillard asked her to massage his back.

      As C.S. did so, Lillard reached inside her underwear and inserted his finger in

      her vagina.” Lillard v. State, No. 49A02-0509-CR-868, slip. op. at *2 (Ind. Ct.

      App. May 26, 2006). The trial court sentenced Lillard to sixty years. On direct

      appeal, Lillard argued that his incarceration had violated Indiana Criminal

      Rule 4(C); that C.S. was improperly allowed to testify about other, uncharged

      acts of molestation; and that the trial court improperly excluded a defense

      exhibit on hearsay grounds (“Exhibit D”). In affirming the trial court, we

      found that Lillard’s incarceration did not violate Rule 4(C) and that his other

      two arguments were waived.


[3]   Lillard filed a petition in 2012 for post-conviction relief, but withdrew it without

      prejudice. He filed a second petition on May 8, 2014, which he later amended.

      Lillard argued that he received the ineffective assistance of trial counsel, citing

      trial counsel’s failure to lay a proper foundation for Exhibit D or object to the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 2 of 10
      testimony of uncharged acts of molestation, and the ineffective assistance of

      appellate counsel, citing appellate counsel’s failure to support arguments with

      citations to authority or cogent reasoning. After a January 19, 2016, hearing,

      the post-conviction court denied Lillard’s petition. He now appeals.


                                   Discussion and Decision
[4]   Lillard has three arguments on appeal: (1) that his trial counsel should have

      timely objected to the evidence of uncharged molestations, and if he would

      have done so, such evidence would have been excluded under Indiana

      Evidence Rule 404(b); (2) that his trial counsel should have laid a proper

      foundation for Exhibit D so that he could use it to impeach C.S.’s testimony;

      and (3) that his appellate counsel provided ineffective assistance by failing to

      properly cite the record or case law, which resulted in the waiver of two

      arguments.


[5]   The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Fisher v. State, 810

      N.E.2d 674, 679 (Ind. 2004). When appealing 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, 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. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-

      conviction court in this case made findings of fact and conclusions of law in


      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 3 of 10
      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) (internal

      quotation omitted).


[6]   When evaluating an ineffective assistance of counsel claim, we apply the two-

      part test articulated in Strickland v. Washington, 466 U.S. 668 (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,). 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 would

      have been different.” Id. (citing Strickland, 466 U.S. at 694). The two prongs of

      the Strickland test are separate and independent inquiries; thus, if it is easier to

      dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

      that course should be followed. Williams v. State, 706 N.E.2d 149, 154 (Ind.

      1999) (citing Strickland, 466 U.S. at 697).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 4 of 10
                                    I. Other Acts Evidence
[7]   In order to make the required showing of prejudice regarding trial counsel’s

      alleged failure to object to C.S.’s testimony, Lillard must show that a proper

      objection would have led to the exclusion of the evidence. Lillard points to

      Evidence Rule 404(b), which provides in relevant part as follows:

              (b) Crimes, Wrongs, or Other Acts.


                       (1) Prohibited Uses. Evidence of a crime, wrong, or other
                       act is not admissible to prove a person’s character in order
                       to show that on a particular occasion the person acted in
                       accordance with the character.


                       (2) Permitted Uses; Notice in a Criminal Case. This
                       evidence may be admissible for another purpose, such as
                       proving motive, opportunity, intent, preparation, plan,
                       knowledge, identity, absence of mistake, or lack of
                       accident.


[8]   At trial, C.S. testified about two separate incidents of molestation. In the first,

      Lillard asked C.S. for a back massage while he was laying on the ground on his

      stomach. After she climbed on his back, he reached his hand under her skirt

      and placed his fingers into her vagina for about thirty seconds. In a second

      incident, occurring during the same summer, Lillard carried C.S. to his

      bedroom, removed her skirt and underwear, and again placed his fingers into

      her vagina.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 5 of 10
[9]    Lillard argues that the second incident was used to prove his propensities,

       which Evidence Rule 404(b) prohibits. He cites our opinion in Greenboam v.

       State, 766 N.E.2d 1247 (Ind. Ct. App. 2002). In that case, Greenboam was

       convicted of four counts of Class A child molestation. Id. at 1249. At trial, the

       State presented evidence of Greenboam’s two prior convictions for Class C

       child molestation that he had received two years prior. Id. at 1252. We rejected

       the State’s argument that these molestations occurring two years prior were part

       of a “common scheme or plan” exception to Evidence Rule 404(b), and we

       reversed. Id. at 1254.


[10]   We note that in the present case, Lillard was charged with committing deviate

       sexual conduct “on or about June 1, 2002[,] through August 31[,] 2002 . . . .”

       Appellant’s App. Vol. II p. 204. C.S.’s testimony involved molestations Lillard

       committed within this period. The State did not use the first incident to bolster

       the second, or the second the first; either incident would support Lillard’s

       conviction. See Marshall v. State, 893 N.E.2d 1170, 1175-76 (Ind. Ct. App. 2008)

       (where “repeated molestations . . . fell within the respective time periods

       outlined in the charging information . . . the evidence . . . was presented as

       direct evidence of the charged molestations”).


[11]   Because we find that C.S.’s testimony was admissible and would have been

       admitted over trial counsel’s objection, Lillard cannot show that he suffered any

       prejudice in this regard. Accordingly, this argument is unavailing.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 6 of 10
                                              II. Exhibit D
[12]   At trial, Lillard attempted to introduce an intake form produced by the hospital

       to which C.S. went. A handwritten note on the form reads, “Thinks a family

       member molested her – Ø penetration fondling – Doesn’t want exam if not

       necessary. Has happened 5 times. Last time about 8mos ago.” Def. Ex. D.

       Lillard interprets this remark to be an admission made by C.S. to a hospital

       worker that there was no penetration. The State objected to the document on

       hearsay grounds, and trial counsel sought its admission under the business

       records exception or the statement made for medical treatment exception. The

       trial court sided with the State, saying “the information contained therein is on

       its surface unreliable because it doesn’t identify who was making the statement

       or why . . . .” Tr. p. 123-24. The document appears to be signed by C.S.’s

       mother rather than C.S.


[13]   Lillard acknowledges that his trial counsel attempted to have Exhibit D

       admitted as a business record or a statement made for medical treatment. But

       he argues that counsel should have conducted further investigations to have

       additional bases for admission.


[14]   “[C]ounsel has a duty to make reasonable investigations or to make a

       reasonable decision that makes particular investigations unnecessary.” Boesch v.

       State, 778 N.E.2d 1276, 1284 (Ind. 2002). Here, trial counsel made the decision

       that he could have Exhibit D admitted under two different theories, and so

       ended his investigations into further bases for admission. In post-conviction


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 7 of 10
       proceedings, to satisfy his burden of proving that counsel was ineffective for

       failing to investigate, the petitioner is required to go beyond the trial record to

       show what additional preparation, if undertaken, would have produced. Woods

       v. State, 701 N.E.2d 1208, 1214 (Ind. 1998). As it stands, we are not even sure

       that the statement “Ø penetration fondling” means that there was no

       penetration. Even if it did, we do not know whether such a statement was

       made by C.S., her mother, or whether it was a summary made by a hospital

       worker. To be sure, Lillard provided the post-conviction court with an affidavit

       from a hospital worker who testified that, typically, “the employee who first

       speaks with the patient would ask the patient why he or she was there . . . and

       would enter the patient’s own words or a summation of those words into the

       ‘reason for visit’ blank . . . .” Pet’r’s Ex. B. But the affiant also testified, “In the

       case of a minor patient, sometimes details are provided by a guardian.” Id. In

       other words, further investigations have also failed to clarify who made the

       statement transcribed in Exhibit D. The post-conviction court did not admit

       this document because the affiant explicitly disclaimed any knowledge of who

       spoke with C.S. in 2002.


[15]   In sum, Lillard has not convinced us that additional investigations would have

       produced sufficient information to ensure Exhibit D’s admission. Beyond that,

       it is complete speculation whether this single notation would have made the

       jury disbelieve C.S.’s account. As such, Lillard is far from showing “that the

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

       to that reached by the [post-conviction] court.” Weatherford, 619 N.E.2d at 917.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 8 of 10
                                      III. Appellate Counsel
[16]   Lillard argues that he received the ineffective assistance of appellate counsel. In

       the direct appeal brief, appellate counsel acknowledged that trial counsel had

       failed to make a timely objection to C.S.’s testimony of other acts of

       molestation, that trial counsel had thereby waived the issue, and that, therefore,

       the issue before us was one of fundamental error. Lillard, slip. op. at *7. But

       then appellate counsel himself waived the fundamental error argument “by

       failing to support it with citation to authority or cogent reasoning.” Id.

       Appellate counsel’s failure to make pinpoint citations in his argument regarding

       Exhibit D, “to help us determine where, within a decision, support for his

       contentions may be found,” id. (citing Haddock v. State, 800 N.E.2d 242, 245 n.5

       (Ind. Ct. App. 2003)), also resulted in the waiver of that argument.


[17]   We agree with Lillard that his appellate counsel was not an exemplar of

       effective advocacy. But as noted above, Lillard’s claim of ineffectiveness of

       appellate counsel can only succeed upon a showing that a competent attorney

       would have achieved a different result. We have already found that C.S.’s

       testimony regarding multiple acts of molestation would have been admitted

       over a timely 404(b) objection, and that Lillard has failed to show that

       additional investigations would have led to the admission of Exhibit D.

       Therefore, Lillard has failed to prove that a competent appellate counsel would

       have achieved a different result. Because he was not prejudiced, Lillard’s claim

       that he received the ineffective assistance of appellate counsel is unavailing.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 9 of 10
[18]   The judgment of the post-conviction court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-PC-1879 | February 21, 2017   Page 10 of 10
