Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                    Dec 17 2014, 10:17 am
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.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOSEPH M. CLEARY                                GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                IAN McLEAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT WARNER,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 29A05-1402-PC-52
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                            The Honorable Steven R. Nation, Judge
                    Cause No. 29D01-1108-PC-12552 & 29D01-0508-PC-130


                                    December 17, 2014

              MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Petitioner, Robert Warner (Warner), appeals the post-conviction

court’s denial of his petition for post-conviction relief.

       We affirm.

                                           ISSUE

       Warner raises one issue on appeal which we restate as: Whether Warner was

denied effective assistance of counsel.

                        FACTS AND PROCEDURAL HISTORY

       We adopt this court’s statement of facts as set forth in our memorandum opinion

issued in Warner’s direct appeal, Warner v. State, No. 29A04-0907-CR-420 (Ind. Ct.

App. Dec. 11, 2009), trans. denied:

      On January 18, 2005, Warner spoke to M.N. on the telephone about a mutual
      friend. Warner told M.N. that he was sixteen years old and a high school
      sophomore. He was actually seventeen and a senior. Warner asked to meet
      M.N., and she agreed. She took her dogs for a walk in her neighborhood,
      and Warner met her. Warner told M.N. that she looked “innocent” and
      asked if she was a virgin. She told him that she was only thirteen and that
      she was a virgin. Warner asked her if she would be his girlfriend, and she
      agreed.

      On January 21, 2005, Warner and M.N. met at an ice-skating rink. M.N.
      believed that they were going to go to the mall and have dinner. Instead,
      after they got in Warner’s car, he called his home and learned that his mother
      was out. Warner took M.N. to his house. He left her in the living room and
      went upstairs. Then he called M.N. She went upstairs and found him lying
      naked on the bed. M.N. “freaked out and went into the bathroom” and
      locked the door. Warner told her to come out, and that “it was going to be
      okay.” M.N. unlocked the bathroom door and came out. Warner was still
      naked. He asked her if she “was ready.” M.N. started crying and said “no.”
      Warner said, “[E]ither you’re ready or I’m going to make you be ready.”
      Warner told M.N. to take her pants off and get on top of him, and she
      obeyed. When she “got on top of him, he pushed [her] down on him.” She

                                              2
     was in pain and told him that it hurt. He told her to “shut up.” Afterward,
     Warner took her back to the skating rink and told her “not to tell anyone or
     he was going to kill [her].”

     Warner called M.N. the following day and asked to see her again. M.N. told
     him that she was scared of him. Warner apologized and said that “it would
     not happen again.” M.N. agreed to see him. In the following months,
     Warner fondled M.N., put his penis in her mouth, and Warner and M.N. had
     sexual intercourse multiple times. M.N. was “scared to say no to him”
     because “he made [her] the first time.”

     Warner also had anal sex with M.N. twice. The first time, she told him she
     did not want to do it, but he disregarded her refusal and penetrated her anus,
     causing her to scream in pain and ask him to stop. He did not. As a result,
     M.N. suffered pain and discomfort for months. While at dinner with her
     parents for her fourteenth birthday, M.N. began crying due to the pain. She
     explained to her parents that she was in pain, but did not explain the cause.
     Her father gave her some medicinal cream for the pain.

     On the second occasion, Warner was at M.N.’s house. They were watching
     television with M.N.’s father, and he fell asleep on the floor. Warner told
     M.N. that he wanted to have sex with her. She got on her knees on the couch
     and he pulled her pants off and penetrated her anus again. M.N. was in pain
     and wanted to scream out, but her head was pushed down in a pillow. Her
     father remained asleep.

     In April 2005, M.N. and her family went to Florida on vacation. Warner
     gained entrance to M.N.’s home and took a pair of her underwear and a
     photograph of her from the home. That summer, Warner told M.N. to make
     “videos of [herself] in the bathtub fingering herself and he wanted [her] to
     moan a lot.” M.N. did not want to make a video, but she did because she
     “didn’t want him to get mad at [her].”

Slip op. at 1-2 (internal citations omitted). On August 2, 2005, the State filed an

Information, charging Warner with two Counts of sexual misconduct, Class C felonies,

and one Count of possession of child pornography, a Class D felony. On June 30, 2006,

Warner waived juvenile court jurisdiction. Subsequently, on October 27, 2006, the State

amended the Information by adding the following charges: eight Counts of child


                                           3
molesting, Class B felonies, one Count of criminal deviate conduct, a Class B felony, one

Count of sexual misconduct with a minor, a Class C felony, one Count of residential

entry, a Class D felony, and one Count of conversion, a Class A misdemeanor.

        A four-day jury trial was conducted from December 8 through December 11,

2008. At the close of the evidence, the jury found Warner guilty of child pornography,

criminal deviate conduct, and conversion. Since the jury was hung on the remaining

charges, the trial court declared a mistrial and set a jury trial for April 13, 2009. On

March 26, 2009, the trial court sentenced Warner to one-and-one-half years for

possession of child pornography, and ten years for criminal deviate conduct—with two

years suspended, and eight years executed. Of the eight years, Warner was ordered to

serve four years in the Indiana Department of Correction, four years in a Work Release

Program, and two years on probation. Both sentences were to run concurrently. As for

the conversion charge, the trial court ordered Warner to 365 days in the Hamilton County

Jail.

        On direct appeal, Warner only challenged the jury instructions tendered for his

criminal deviate charge. Specifically, Warner argued that the trial court committed a

fundamental error in instructing the jury that a child under the age of sixteen years could

not consent to deviate sexual conduct or sexual intercourse. On December 11, 2009, we

affirmed Warner’s conviction. See id.

        According to the Chronological Case Summary (CCS), on June 2, 2009, trial

counsel Carolyn Rader (Attorney Rader) withdrew her appearance on representing

Warner in the remaining charges, and thereafter, Warner hired his own counsel on June

                                            4
29, 2009. Once again, the State amended the Information by renumbering the remaining

Counts, dismissing one Count, and deleting the adjudicated Counts. On September 14,

2009, Warner filed a Notice of Alibi in relation to the remaining Counts and a Second

Notice of Alibi on October 13, 2009. Following this court’s affirmation of Warner’s

conviction in December 2009, the State moved to dismiss the remaining charges on

January 22, 2010, stating:

       The State does not wish to retry the remaining counts given that (a) [Warner’s]
       conviction has been upheld, (b) [Warner] has [not] petitioned for [] rehearing or
       transfer on the Court of Appeals’ opinion, and (c) the State is satisfied with the
       sentence of the court.

(Appellant’s App. p. 36). On February 2, 2010, the trial court granted the State’s motion.

Subsequently, Warner filed his post-conviction petition on August 8, 2011.

       In his petition for post-conviction relief, Warner alleged that he was denied

effective assistance of counsel because Attorney Rader had failed to: (1) investigate and

present evidence that would have established that Warner did not have a computer or

device capable of actually viewing the pornographic disk; (2) investigate and present an

alibi which would have accounted for Warner’s whereabouts during the times he was

alleged to have engaged in criminal deviate conduct; (3) impeach M.N.’s testimony; and

(4) investigate a letter written by M.N. allowing him to take M.N.’s underwear while her

family was away on vacation and for that reason, he was not guilty of conversion. On

September 12, 2013, the post-conviction court conducted Warner’s evidentiary hearing.

On January 8, 2014, the post-conviction court issued its Order denying Warner post-

conviction relief.


                                            5
       Warner now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       It is well established that post-conviction proceedings do not afford the petitioner

with a super appeal, but rather, provide the opportunity to raise issues that were unknown

or unavailable at the time of the original trial or the direct appeal. Turner v. State, 974

N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. The proceedings do not substitute

for a direct appeal and provide only a narrow remedy for subsequent collateral challenges

to convictions. Id. If an issue was available on direct appeal but not litigated, it is waived.

Id. A petitioner must establish his claims to post-conviction relief by a preponderance of

the evidence. Ind. Post-Conviction Rule 1, § 5.

       Appeal from a denial of post-conviction relief is equivalent to an appeal from a

negative judgment. Turner, 974 N.E.2d at 581. We will therefore not reverse unless the

evidence as a whole leads unerringly and unmistakably to a decision opposite that

reached by the post-conviction court. Id. Where the post-conviction court has entered

findings of fact and conclusions of law, we accept the findings of fact unless clearly

erroneous, but accord no deference for conclusions of law. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion, and the post-conviction court has reached the

opposite conclusion. Id. at 581-82. The post-conviction court is the sole judge of the

weight of the evidence and the credibility of witnesses. Id.

       Warner urges to find that Attorney Rader was ineffective for: (1) failing to present

Warner’s alibi which would have accounted for his whereabouts during the times he was

                                              6
alleged to have engaged in criminal deviate conduct; (2) failing to call other witnesses to

impeach M.N.; and (3) failing to investigate the existence of a letter written by M.N.

allowing him to take M.N.’s underwear while her family was away on vacation.

                                                  I. Notice of Alibi

       Warner first argues that Attorney Rader was ineffective for failing to investigate

and present an alibi which he believes would have vindicated him from criminal deviate

conduct.1 We strongly presume that counsel provided adequate assistance and exercised

reasonable professional judgment in all significant decisions. McCary v. State, 761

N.E.2d 389, 392 (Ind. 2002). We assess counsel’s conduct based upon the facts known

at the time and not through hindsight. See State v. Moore, 678 N.E.2d 1258, 1261 (Ind.

1997).     Lastly, we do not “second-guess” strategic decisions requiring reasonable

professional judgment even if the strategy in hindsight did not serve the defendant’s

interests. Id.

         In addition, in reviewing claims of ineffective assistance, we are mindful that the

failure to present an alibi defense is not necessarily ineffective assistance of counsel.

D.D.K. v State, 750 N.E.2d 885, 890 (Ind. Ct. App. 2001) (citing Jones v State, 569




1
  Warner also argues that the State was encouraged to dismiss the remaining charges after he filed his notice of
alibi in his second case. Therefore, Warner argues that if Attorney Rader had pursued an alibi defense in relation
to his criminal deviate charge, he would have been vindicated from the crime. We disagree, and give deference to
footnote number 2 of the post-conviction court’s finding stating:
     “[Warner] may be arguing that the timing of the [n]otice [of] [a]libi and the Motion to Dismiss suggest that
     the State felt compelled to dismiss the remaining charges due to the [n]otice [a]libi. However, the timing of
     the [c]ourt of [a]ppeals decision also provides a reasonable basis for the State to dismiss the remaining
     charges, and in fact, that is the reason provided by the State in the [m]otion. Given that no evidence to the
     contrary was presented by [Warner], this argument must fail.”
   (Appellant’s App. pp. 13-14).


                                                        7
N.E.2d 975, 982-83 (Ind. Ct. App. 1991)). Absent a strong showing to the contrary, we

normally presume counsel failed to present an alibi defense because it was not indicated

by the circumstances or, if indicated, was rejected upon due deliberation. Lee v. State,

694 N.E.2d 719, 721 n.7 (Ind. 1998).

        Turning to the record, the Information charging Warner indicated that “on or about

January 22, 2005 and June 17, 2005,” Warner forced M.N. to submit to criminal deviate

conduct by inserting his penis into M.N.’s anus. (Appellant’s App. p. 62). At trial, M.N.

testified that Warner had anal sex with her on at least two occasions. The first time, M.N.

told Warner that she did not want to do it, but he disregarded her refusal and penetrated

her, causing her to scream in pain. The second time, Warner was at M.N.’s house

watching television with M.N.’s father, who fell asleep on the floor. While M.N.’s father

was asleep, Warner told M.N. that he wanted to have sex with her. M.N. got on her knees

on the couch, and Warner pulled her pants off and penetrated her anus again. M.N. was

in pain and wanted to scream, but Warner pushed her head down into a pillow.

        At his evidentiary hearing, Warner offered his Second Notice of Alibi Defense

filed in relation to his second case. Warner presented it as evidence of what Attorney

Rader should have offered at his first trial. The second alibi purported to account for

Warner’s whereabouts on the evening of January 21, 2005; his school, work, and dinner

schedule from January 31, 2005, and February 4, 2005; and lastly, his school and work

schedule between 7:00 a.m. to 5:00 p.m. from January 22, 2005 through February 28,

2007.



                                            8
         We initially note that the last part of Warner’s Second Notice of Alibi only gives

an account of his whereabouts between 7:00 a.m. to 5:00 p.m. from January 22, 2005,

through February 28, 2007, and even with that account, it would still not exclude the

possibility of him having anal sex with M.N. after 5:00 p.m. Moreover, we find that even

without presenting an alibi defense at Warner’s trial, the Second Notice of Alibi would

have been merely cumulative. At trial, Attorney Rader elicited an alibi from Warner’s

mother who gave an explanation of Warner’s work and school schedule. Specifically,

Warner’s mother stated that during the time he was accused of the sexual acts against

M.N., Warner attended school in the morning, got off at 11:00 a.m., reported to work

almost immediately, and would leave work at around 5:00 p.m. or 6:00 p.m.

         Turning to counsel’s performance, Attorney Rader averred that she had, in fact,

considered offering an alibi defense on behalf of Warner, but ultimately chose not to

pursue that defense. Warner’s mother testified that she was surprised with trial counsel’s

omission. Attorney Rader explained that her change of trial plan was grounded in the

fact that it would have been “difficult to present an alibi defense for each and every day

over a period of [] 6 months” unless Warner kept an awfully detailed calendar. (P-C Tr.

p. 18).2 Also, taking into account that sex between teenagers happens quickly, she

recalled that constructing an alibi would have been pointless because she “remembered

thinking that teenagers . . . [did] things pretty fast” and that “every juror [] would

remember that [].” (P-C Tr. p. 19).


2
 Throughout this opinion, the transcript of Warner’s trial will be cited as “Trial Tr.” and the transcript of the post-
conviction hearing will be cited as “P-C Tr.”

                                                          9
         All things considered, counsel believed that Warner’s best chances lay with a

tactic of presenting jury nullification, 3 and she focused her energies on developing the

theory of a teenage romance in the minds of the jurors, and lessening the gravity of

deviate sexual conduct to mere teenage sex. To effectuate her jury nullification defense,

she carefully advised the jurors that they should not “disregard the law”; however, they

should understand that is not “how real life works in teenage romance” and that they

could find that Warner did not force M.N. submit to criminal deviate conduct. (P-C Tr.

13).

         It is well established that this court will not speculate as to what may or may not

have been an advantageous trial strategy. Johnson v State, 832 N.E.2d 985, 997 (Ind. Ct.

App. 2005), trans. denied. Isolated mistakes, poor strategy, inexperience, and instances

of bad judgment do not necessarily render representation ineffective. Timberlake v. State,

753 N.E.2d 591, 603 (Ind. 2001). At the time of the trial, Attorney Rader considered

raising an alibi defense but decided against it for strategic reasons. Because we defer to

counsel’s strategic and tactical decisions, Warner has failed to show that trial counsel’s

performance fell below an objective standard of reasonableness. See Reed v. State, 866

N.E.2d 767, 769 (Ind. 2007).

                                        II. Failure to Call Other Witnesses




3
  Jury nullification is “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either
because the jury wants to send a message about some social issue that is larger than the case itself or because the
result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Black’s Law Dictionary 875
(8th ed. 2004).

                                                          10
       Next, Warner argues there were other family members and friends who would

have effectively impeached M.N. At trial, M.N. testified that the first time she had sex

with Warner was at his home and that before they had sex, Warner took away her cell

phone and “locked it in his dresser.” (Trial Tr. p. 387). M.N. further testified that there

was an alarm clock in Warner’s bedroom, and a princess castle belonging to Warner’s

sister in the residence. Attorney Rader cross-examined M.N. about these items being in

Warner’s home, and later called Warner’s mother, who effectively impeached M.N. by

stating that none of these items were present in her home.

       We recognize that under certain circumstances, failure to call a useful witness can

constitute deficient performance. See Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998).

Attorney Rader stated at the evidentiary hearing that she did not attempt to marshal up a

parade of witnesses to impeach M.N. because the inconsistencies in M.N.’s testimony

were trivial. She further explained that a jury would understand that “mothers are usually

the ones who clean, who shut drawers, who put things away” and would be most familiar

with the contents, and setting of a home. (P-C Tr. p. 24). As stated in the foregoing, the

decision to call a witness is a matter of trial strategy, as such, we will not second-guess

Attorney Rader’s election of calling a single witness to impeach M.N. Moreover, we fail

to see how the introduction of additional impeachment evidence against M.N. would have

resulted in a different outcome.

                                        A. M.N.’s Letter

       Lastly, Warner argues that Attorney Rader failed to investigate the existence of a

letter written by M.N. that would have somehow established that he did not steal M.N.’s

                                            11
underwear while her family was away on vacation. The record reveals Warner did not

ascertain the existence of the letter at his trial, neither did Attorney Rader recall seeing

the letter at Warner’s evidentiary hearing. In finding that Attorney Rader’s performance

was effective on this claim, the post-conviction court concluded that

       A. [Warner] alleges that [M.N.] gave Warner a letter that would have
          established that [M.N.] gave Warner her panties. At [Warner’s trial],
          [Warner] did not admit this letter. [Attorney] Rader was asked if she
          was aware of such a letter, and she said that she did not recall it.
          [Warner’s mother] testified that she found a letter and gave it to
          Warner’s first attorney[,] David Thomas. Presumably, this is the letter
          to which [][Warner] refers; however, there is no evidence as to its
          contents.

       B. [][Warner] could have called David Thomas to testify that he received
          this letter from [Warner’s mother]. [] [Warner] [c]ould also have called
          [M.N.] and asked if she wrote that letter [] . . .

  (Appellant’s App. p. 47). Given that the contents of the letter are unknown, and absent

  any showing that Attorney Rader should have known about the existence of the letter,

  we agree with the post-conviction court that Warner’s claim was too attenuated to

  support post-conviction relief. Based on the foregoing, we conclude that Warner has

  failed to establish clear error in the post-conviction court’s determination that counsel

  performed effectively.

                                      CONCLUSION

       Based on the foregoing, we conclude that the post-conviction court properly

  denied Warner’s petition for post-conviction relief.

       Affirmed.

  MATHIAS, J. and CRONE, J. concur


                                            12
