Pursuant to Ind. Appellate Rule 65(D),
this 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.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

ERIC K. KOSELKE                                     GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    RYAN D. JOHANNINGSMEIER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE                                         May 23 2013, 9:37 am

                     COURT OF APPEALS OF INDIANA

CHARLES KOOTZ,                                      )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )     No. 49A02-1209-PC-721
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                         The Honorable Steven J. Rubick, Magistrate
                             Cause No. 49G01-0607-PC-133518


                                           May 23, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
          In 2007, Charles Kootz was convicted of Class C felony child molesting, Class C

felony sexual misconduct with a minor, and two counts of Class D felony child solicitation.

Kootz then admitted to being a repeat sex offender, and the trial court imposed an aggregate

sentence of fifteen years of incarceration, with three years suspended. Kootz’s convictions

and sentence were affirmed on direct appeal. On August 10, 2010, Kootz filed a petition for

post-conviction relief (“PCR”), contending that he had received ineffective assistance of trial

counsel. Kootz filed a motion to discover, inter alia, the last known address of D.S., one of

his victims, which motion the post-conviction court denied. Following a hearing, the post-

conviction court denied Kootz’s PCR petition in full. Kootz now appeals from that denial,

contending that the post-conviction court erred in rejecting his claim of ineffective assistance

of trial counsel and abused its discretion in denying his motion for specific discovery. We

affirm.

                          FACTS AND PROCEDURAL HISTORY

          The facts underlying Kootz’s convictions were related by this court in its disposition

of his direct appeal:

                 On July 7, 2006, Kootz and Baretta Calvert were living together in
          Indianapolis. D.W., D.S., and Z.W. received permission from their parents to
          spend the night at Calvert’s house. Calvert was acquainted with D.W.’s
          mother, and told the parents of D.S. and Z.W. that he was D.W.’s uncle.
          Kootz arrived home around 7:00 p.m. Calvert asked the boys if they wanted
          back rubs, and Kootz asked them if they wanted to have their legs rubbed.
          Calvert rubbed the boys’ backs and Kootz rubbed their legs. While Kootz was
          rubbing D.S.’s legs, his hand went under D.S.’s shorts and moved up to the
          bottom of his boxer shorts. D.S. felt uncomfortable and moved. Kootz used
          lotion when rubbing D.W.’s legs, and “started getting close to [D.W.’s]
          private,” at which point D.W. pushed Kootz’s hand away, told him “no,” and
          got up and walked away. [Tr.] at 60-61. Also, while the boys were watching

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       television, Kootz “unfolded [D .S.’s] pants and said [‘]nice tan line.[‘]” Id. at
       92.
               Kootz then took the boys on motorcycle rides. After returning from the
       last ride, Kootz gave D.S. money and asked him if he wanted another leg rub.
       D.S. declined. The next morning, Kootz asked D.W. if he wanted another
       back rub. While Kootz was rubbing D.W.’s back, he pulled D.W.’s shorts
       down, “said [D.W.] had a nice butt, and [D.W.] pulled [his shorts] back up,
       and then [Kootz] pulled [the shorts] back down and kissed [D.W.’s] butt.” Id.
       at 63. Kootz also asked D.W. if he would “like a blow job or anything like
       that.” Id. at 71.
               That same morning, D.S. woke up to find Kootz sucking on D. S.’s
       thumb. Kootz then put some money in the waistband of D. S.’s shorts, patted
       D.S. on the back, and kissed him on the head. D.S. then woke up D.W., and
       the boys woke up Calvert, who drove them home. D.S and D.W. told D.W.’s
       mother what had happened, and she called the police.
               On July 21, 2006, the State charged Kootz with four counts of child
       molesting, three counts involving D.S and one count involving Z.W.; sexual
       misconduct with a minor, involving D.W.; and three counts of child
       solicitation, two counts involving D.S. and one count involving D.W. On
       October 4, 2006, the State filed a notice that it was seeking a repeat sex
       offender sentencing enhancement.
               On April 9, 2007, the trial court held a jury trial. The jury returned
       guilty verdicts for one count of child molesting with regard to D.S., one count
       of sexual misconduct with a minor with regard to D.W., and two counts of
       child solicitation with regard to D.S. Kootz subsequently admitted to being a
       repeat sex offender. On April 20, 2007, the trial court held a sentencing
       hearing at which it sentenced Kootz to eight years with two years suspended
       for child molesting, enhanced by four years due to Kootz’s status as a repeat
       sex offender; eight years with two years suspended for sexual misconduct with
       a minor; and three years with one year suspended for each count of child
       solicitation. The trial court ordered that the sentence for child molestation run
       consecutively to the sentence for one count of child solicitation, resulting in an
       aggregate sentence of fifteen years, with three years suspended.

Kootz v. State, No. 49A02-0705-CR-427, slip op. at 1 (Ind. Ct. App. Feb. 11, 2008)

(footnotes omitted). Following direct appeal, in which Kootz challenged his sentence and the

sufficiency of the evidence to sustain his convictions, this court affirmed Kootz’s convictions




                                               3
and remanded for the sole purpose of correcting an error in the trial court’s sentencing

statement. Id. at 3.

       On August 10, 2010, Kootz filed a PCR petition. On August 25, 2010, Kootz filed a

motion for specific discovery, requesting that the State produce the last known addresses of

the State’s witnesses who testified at trial. On September 17, 2010, the State objected to

Kootz’s motion for specific discovery and moved for a protective order. On January 4, 2011,

the post-conviction court held an evidentiary hearing. On June 8, 2011, the post-conviction

court denied Kootz’s motion for specific discovery. On November 22, 2011, the post-

conviction court held another evidentiary hearing. On August 13, 2012, the trial court denied

Kootz’s PCR petition in full.

                                      DISCUSSION

                                 PCR Standard of Review

       Our standard for reviewing the denial of a PCR petition is well-settled:

               In reviewing the judgment of a post-conviction court, appellate courts
       consider only the evidence and reasonable inferences supporting its judgment.
       The post-conviction court is the sole judge of the evidence and the credibility
       of the witnesses. To prevail on appeal from denial of post-conviction relief,
       the petitioner must show that the evidence as a whole leads unerringly and
       unmistakably to a conclusion opposite to that reached by the post-conviction
       court.… Only where the evidence is without conflict and leads to but one
       conclusion, and the post-conviction court has reached the opposite conclusion,
       will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and quotations

omitted).




                                             4
                        I. Ineffective Assistance of Trial Counsel

       We review claims of ineffective assistance of counsel based upon the principles

enunciated in Strickland v. Washington, 466 U.S. 668 (1984):

       [A] claimant must demonstrate that counsel’s performance fell below an
       objective standard of reasonableness based on prevailing professional norms,
       and that the deficient performance resulted in prejudice. Prejudice occurs
       when the defendant demonstrates that “there is a reasonable probability that,
       but for counsel’s unprofessional errors, the result of the proceeding would
       have been different.” A reasonable probability arises when there is a
       “probability sufficient to undermine confidence in the outcome.”

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

Because an inability to satisfy either prong of this test is fatal to an ineffective assistance

claim, this court need not even evaluate counsel’s performance if the petitioner suffered no

prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

                        A. Failure to Properly Prepare for Trial

       Kootz contends that his trial counsel Mark King failed to adequately investigate a

witness. This claim is related to D.S., whom King unsuccessfully attempted to depose three

times prior to trial. Eventually, the State had to request a bench warrant to secure D.S.’s

testimony at trial. Specifically, Kootz contends that King should have moved to have D.S.

excluded as a witness, requested sanctions against the State, or moved for a continuance.

       [E]stablishing [failure to investigate as a] ground for ineffective assistance …
       require[s] going beyond the trial record to show what the investigation, if
       undertaken, would have produced. This is necessary because success on the
       prejudice prong of an ineffectiveness claim requires a showing of a reasonable
       probability of affecting the result.

Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998).


                                              5
       King testified at the PCR hearing that he did not move to exclude D.S. as a witness or

seek sanctions because it was D.S.’s mother who was hindering access to D.S., not the State

or D.S. himself. King testified that the trial court was unlikely to exclude D.S. as a witness

“because it wasn’t a willful act by either the State or the child.” PCR Tr. p. 10. It follows

that the trial court would not likely impose sanctions on the State for the same reason. Kootz

has failed to show deficient performance for failing to seek D.S.’s exclusion or sanctions

against the State.

       As for King’s decision not to seek a continuance, presumably to attempt again to

depose D.S., Kootz has also failed to show prejudice. King testified that “nothing surprised

[him] about what the young men said. [King] believe[s] all the facts were in the probable

cause or available by the other three witnesses.” PCR Tr p. 13. King also testified that even

if he had met D.S. before trial, he “d[id]n’t think [his] questioning would have been

different.” PCR Tr. p. 13. Kootz has failed to show just what information could have been

discovered that would have had a reasonable probability of changing King’s defense strategy,

much less the result of his trial.

                             B. Failure to Object to Testimony

       Kootz contends that his trial counsel was ineffective for failing to object to certain

testimony. Specifically, Kootz claims that King should have objected when the prosecutor

elicited testimony from Kootz that he had met Calvert at a bar called the Unicorn Club, at

which bar Kootz testified that he had seen men stripping. Although King did not specifically

recall Kootz’s testimony, when asked if he thought there would be any reason not to object to


                                              6
such testimony, King replied:

       Yeah. If someone inadvertently or passively mentioned the Unicorn club [sic],
       I wouldn’t have wanted to bring out special attention to it, depending on the
       context. The idea was to make sure that the jury had no idea that Mr. Kootz
       was homosexual, or even if he was, because he never really admitted it to me
       personally, so I didn’t want that implication that he was a homosexual to be
       brought up at trial, so I definitely would like to believe I wouldn’t have tried to
       bring special attention to any one particular fact.

PCR Tr. p. 9. King’s testimony strongly suggests that he made a conscious, strategic

decision not to object to Kootz’s testimony about the Unicorn Club, and we give such

decisions great deference.

               Counsel is afforded considerable discretion in choosing strategy and
       tactics, and we will accord those decisions deference. A strong presumption
       arises that counsel rendered adequate assistance and made all significant
       decisions in the exercise of reasonable professional judgment. We recognize
       that even the finest, most experienced criminal defense attorneys may not
       agree on the ideal strategy or the most effective way to represent a client.
       Isolated mistakes, poor strategy, inexperience, and instances of bad judgment
       do not necessarily render representation ineffective.

Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002).

       We conclude that Kootz has failed to establish that King’s performance was deficient

in this regard. The post-conviction court found that “[t]he State did not engage in any

repetitive or improper use of this topic[,]” and our review of the records supports this finding.

Appellant’s App. p. 75. The State did not follow up on Kootz’s testimony that he had seen

men stripping at the Unicorn Club, nor did it attempt to elicit any testimony that the club was

a gay bar or that Kootz was homosexual. We cannot say that it was unreasonable to conclude

that an objection to Kootz’s brief testimony regarding the Unicorn Club might well have

highlighted the testimony, even if the objection had been sustained. See, e.g., Pennycuff v.

                                               7
State, 745 N.E.2d 804, 815 (Ind. 2001) (“The defense attorney may well have decided,

however, to let the brief statement pass unremarked rather than to highlight it with even a

sustainable objection.”).

       Moreover, Kootz has failed to establish that he was prejudiced by the testimony. The

State produced substantial evidence of Kootz’s guilt, in the form of eyewitness testimony

from D.W., D.S., Z.W., and Calvert. Although Calvert did not testify that he witnessed any

improper touching, in general, the testimony from each witness largely corroborated that of

the other three. Moreover, Kootz was acquitted of four of the eight charges originally

brought against him, suggesting that the jury based its verdicts on thoughtful consideration of

the evidence, not prejudice caused by any suggestion that Kootz might be homosexual.

Kootz has failed to establish that he received ineffective assistance of trial counsel.

                                   II. Special Discovery

       Kootz contends that the post-conviction court abused its discretion in denying his

request to compel the State to provide him with D.S.’s last known address. “[T]he

management of discovery under the Trial Rules is within the sound discretion of the trial

court.” Roche v. State, 690 N.E.2d 1115, 1133 (Ind. 1997). “We will not reverse a trial

court’s decision on discovery absent an abuse of discretion.” Id. “An abuse of discretion is

found when the result reached by the trial court is clearly against the logic and effect of the

facts and circumstances before the court or the reasonable, probable, and actual deductions

flowing therefrom.” Hall v. State, 760 N.E.2d 688, 689-90 (Ind. Ct. App. 2002), trans.

denied.


                                              8
       The post-conviction court did not abuse its discretion in denying Kootz’s specific

discovery request. Although Kootz notes that there is no evidence that he has ever harassed,

intimidated, or threatened D.S., the fact remains that he was convicted of molesting him. It is

safe to assume that any communication from Kootz or his attorney would be very traumatic

for D.S. and his family. Moreover, Kootz once again fails to explain, much less show, just

what he hoped to gain from contact with D.S. Kootz speculates that deposing D.S. might

uncover something that would bolster his ineffective assistance of counsel claim, but there is

nothing in the record to support this speculation. Finally, there is no evidence that D.S.’s

address was somehow under the sole control of the State or that it was otherwise unavailable

to Kootz. The record makes it clear that D.S.’s and his mother’s full names were known to

Kootz, and yet Kootz does not claim that he made any attempt to try to locate D.S. on his

own. The post-conviction court did not abuse its discretion in denying Kootz’s request for

specific discovery.

       The judgment of the post-conviction court is affirmed.

RILEY, J., and BROWN, J., concur.




                                              9
