MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Oct 31 2016, 6:17 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                        Gregory F. Zoeller
Law Office of Cynthia M. Carter, LLC                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Fernando Trujillo,                                       October 31, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1601-PC-6
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Mark D. Stoner, Judge
                                                         The Honorable
                                                         Jeffrey L. Marchal, Magistrate
                                                         Trial Court Cause No.
                                                         49G06-0301-PC-8310



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016           Page 1 of 13
[1]   Fernando Trujillo (“Trujillo”) appeals the denial of his petition for post-

      conviction relief, contending that the post-conviction court erred in denying his

      petition. On appeal, he raises the following consolidated and restated issue for

      our review: whether Trujillo received ineffective assistance of his trial counsel.


[2]   We affirm.


                                         Facts and Procedural History
[3]   During the interlocutory appeal from the grant of the State’s request to use child

      hearsay, this court found the following facts, in part:


                 In January 2003, C.M. lived in an apartment on 38th Street in
                 Indianapolis with her mother, Reyna Gregerios (“Mother”), her
                 father, Alvaro Murietta (“Father”), her then eight-year-old
                 brother, and Trujillo.1 The apartment had two bedrooms, and
                 Mother, Father, and their two children slept in one, while
                 Trujillo slept in the other. On Sunday, January 12, Father, who
                 usually worked at night, received a call from his employer asking
                 him to report at 5:00 a.m. Monday morning. Mother was also
                 scheduled to work on Monday from 7:00 a.m. to 3:30 p.m. On
                 Sunday evening, Mother called her sister-in-law, Imelda Lopez,
                 to see if she could watch C.M. during the day. Lopez agreed.
                 On Monday morning, Mother told her son, who got on the
                 school bus around 8:30 a.m., to walk C.M. to Lopez’s house
                 before he left for school. Mother then left for work while C.M.
                 was still asleep. C.M.’s brother and Trujillo were also in the
                 apartment.




      1
          Trujillo is Father’s cousin.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 2 of 13
        Mother arrived home from work around 4:00 p.m. After C.M.
        got back to the apartment, she and Mother were in their bedroom
        talking. Mother asked C.M., as she always did when Lopez
        watched her during the day, whether she had eaten and whether
        she was treated well. C.M. then told Mother that Trujillo, whom
        C.M. called “Huero,” had grabbed her, laid her on his bed, took
        off her clothes, and put his “pilin” in her “culito.” 2 C.M. also
        told Mother that it had hurt and that it had happened that same
        morning before her brother had left for school. After C.M. stated
        that she felt “dirty,” Mother removed C.M.’s underwear and
        smelled a strange odor.


        Father arrived home around 9:00 p.m., and Mother told him
        about C.M.’s allegations. After Father talked to C.M., Mother
        and Father took her to St. Vincent’s Hospital for an examination.
        Mother spoke with police officers there, but the officers did not
        interview C.M. Instead, the officers told Mother and Father to
        take C.M. to the Family Advocacy Center on the afternoon of
        January 15. The family returned home during the early morning
        hours of January 14. That day, C.M. appeared upset but played
        with her brother. Father asked C.M. about the incident again
        because he did not believe her story, and C.M. told him the same
        version of events she had told her mother.


        On the afternoon of January 15, two days after the alleged
        incident, Mother, Father, C.M., her brother, and Trujillo all went
        to the Family Advocacy Center. Indianapolis Police Detective
        Cathy Gregory interviewed C.M. outside the presence of other
        family members, and that interview was videotaped. Tatiana
        Mitchell, a bilingual caseworker with the Marion County Office
        of Family and Children (“OFC”), was also present during the
        interview and served as an interpreter. Initially, C.M. was quiet



2
 The record showed that C.M. only spoke Spanish at the time and that when she used the word “pilin,” she
was referring to penis and when she used the word “culito,” she meant vagina.

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016         Page 3 of 13
              and fairly nonresponsive. Then, after Mitchell asked C.M.
              whether she knew why she was there, C.M. spontaneously stated
              that Trujillo had taken off her clothes and placed the tip of his
              “pilin” in her “culito.” Mitchell told Detective Gregory that the
              literal translation for “culito” was “little butt.” Mitchell then
              asked C.M. to clarify what she meant by “culito,” and C.M.
              repeatedly pointed to her vaginal area. She also stated that this
              happened on Trujillo’s bed and that it hurt a little bit.


              On June 25, 2003, the trial court conducted a Child Hearsay
              Hearing under Indiana Code Section 35-37-4-6. After C.M.
              testified, the court determined that she was not competent to
              testify at trial. However, after hearing testimony from Mother,
              Mitchell, and Detective Gregory, the court determined that
              Mother could testify at trial regarding C.M.’s hearsay statements
              and that C.M.’s videotaped interview [was] also admissible.


[4]   Trujillo v. State, 806 N.E.2d 317, 319-20 (Ind. Ct. App. 2004) (“Trujillo I”). On

      interlocutory appeal, this court determined that the trial court did not abuse its

      discretion when it applied Indiana Code section 35-37-4-6, the “protected

      person” statute, to C.M.’s statement to her mother and to C.M.’s videotaped

      statement to Detective Gregory and ruled that those matters were admissible.

      Id. at 329.


[5]   After the interlocutory appeal, Trujillo was found guilty of Class A felony child

      molesting following a bench trial. The facts supporting Trujillo’s conviction as

      set forth by this court in an unpublished opinion on his direct appeal are as

      follows:

              Four-year-old C.M. lived in an apartment with her mother,
              Reyna, her father, Alvaro, her eight-year-old brother, A.M., and

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 4 of 13
        her twenty-five-year-old cousin Trujillo. Reyna, Alvaro, A.M.,
        and C.M. shared one of the apartment’s two bedrooms, and
        Trujillo used the other bedroom. On January 13, 2003, Alvaro,
        who usually worked nights and cared for C.M. during the day,
        had to work during the day. Accordingly, Reyna made
        arrangements for C.M.’s aunt, who lived in the same apartment
        complex, to watch C.M. Before she left for work that morning,
        Reyna instructed A.M. to walk C.M. to their aunt’s apartment on
        his way to the bus stop. Trujillo was at the apartment with the
        children when Reyna left for work.


        When A.M. was ready to leave, he went to Trujillo’s room where
        C.M. was playing on the bed. Trujillo instructed A.M. to leave
        without C.M. and indicated that he would take C.M. to their
        aunt’s apartment later. Trujillo took off his belt, hit the wall, and
        told A.M. to go to school, scaring him. Trujillo told A.M. to
        lock the front door behind him.


        Trujillo then grabbed C.M., laid her on the bed, “lowered” her
        clothing, and inserted his penis into her vagina. Tr. p. 87. That
        night, when Reyna returned home from work, C.M. reported the
        incident to her. C.M.’s parents then took her to the hospital.


        On January 16, 2003, the State charged Trujillo with one count
        of Class A felony child molesting. The State later added an
        additional count of Class C felony child molesting. On June 16,
        2005, a bench trial began, after which the trial court found
        Trujillo guilty of the Class A felony charge. The trial court
        sentenced Trujillo to thirty years.


Trujillo v. State, No. 49A05-0508-CR-439, slip op. at 2-3 (Ind. Ct. App. Apr. 28,

2006), trans. denied (“Trujillo II”). Petitioner’s conviction was affirmed by this

court on direct appeal. Id. at 8.


Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 5 of 13
[6]   Following his direct appeal, Trujillo filed a petition for post-conviction relief,

      raising a claim of ineffective assistance of trial counsel. Specifically, Trujillo

      claimed that his trial counsel was ineffective “during the child hearsay hearings,

      the trial, and the sentencing” because his attorneys “failed to investigate the

      case, failed to consult expert witnesses, failed to present exculpatory evidence, .

      . . . failed to submit impeaching evidence[,] . . . failed to object to improper

      testimony[,] and failed to properly examine and confront the State’s witnesses.”

      Appellant’s App. at 18.


[7]   At the post-conviction relief evidentiary hearing, Trujillo presented the

      testimony of Jose Salinas (“Salinas”),3 who represented Trujillo during the child

      hearsay proceedings and subsequent interlocutory appeal. At the time of the

      hearing, Salinas did not have the records from his representation of Trujillo due

      to the fact that his old office was damaged during a tornado and a lot of his files

      were “destroyed or scrambled.” P-CR Tr. at 9. Salinas testified that he recalled

      having concerns regarding the interpreter’s translations during C.M.’s initial

      statement to the police. Id. at 10-11. Based on his knowledge as a Spanish

      speaker, Salinas believed that the interpreter’s summaries of C.M.’s statements

      were not complete and “weren’t verbatim.” Id. at 13. Salinas did not

      remember who his successor counsel was or if he ever spoke with the attorney

      who took over Trujillo’s case. Id. at 17. Todd Woodmansee (“Woodmansee”)




      3
          Salinas is now a Marion County Superior Court judge.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 6 of 13
      was subsequently appointed to represent Trujillo after Salinas ended his

      representation. At the post-conviction relief hearing, Woodmansee testified

      that he remembered “very little” about Trujillo’s case. Id. at 23.


[8]   Additionally, Trujillo introduced copies of the lower court records,

      Woodmansee’s file, and a Department of Child Services (“DCS”) file related to

      the incident at the hearing. The State objected to the admission of the DCS file,

      arguing that it would not have been available to trial counsel and was not

      relevant. Id. at 32. The trial court admitted the file over the State’s objection.

      At the conclusion of the hearing, the trial court issued its findings of fact,

      conclusions thereon and ordered Trujillo’s petition for post-conviction relief

      denied. Trujillo now appeals.


                                     Discussion and Decision
[9]   Post-conviction proceedings do not afford the petitioner an opportunity for 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.

      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post-Conviction Rule 1(5).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 7 of 13
[10]   When a petitioner appeals a denial of post-conviction relief, he appeals a

       negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

       trans. denied. The petitioner must establish that the evidence as a whole

       unmistakably and unerringly leads to a conclusion contrary to that of the post-

       conviction court. 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. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

       denied. The post-conviction court is the sole judge of the weight of the evidence

       and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

       App. 2008), trans. denied. We accept the post-conviction court’s findings of fact

       unless they are clearly erroneous, and no deference is given to its conclusions of

       law. Fisher, 878 N.E.2d at 463.


[11]   Trujillo argues that the post-conviction court erred in denying his petition for

       post-conviction relief because he received ineffective assistance from both of his

       trial attorneys. When evaluating a claim of ineffective assistance of counsel, we

       apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668

       (1984). Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v.

       State, 799 N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied.

       First, the defendant must show that counsel’s performance was deficient. Id.

       This requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that the errors were so serious that they resulted

       in a denial of the right to counsel guaranteed to the defendant by the Sixth and

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 8 of 13
       Fourteenth Amendments. Id. Second, the defendant must show that the

       deficient performance resulted in prejudice. Id. To establish prejudice, a

       defendant must show that there is a reasonable probability that but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.

       Id. A reasonable probability is a probability sufficient to undermine confidence

       in the outcome. Id.


[12]   Further, counsel’s performance is presumed effective, and a defendant must

       offer strong and convincing evidence to overcome this presumption. Williams v.

       State, 771 N.E.2d 70, 73 (Ind. 2002). 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 that, at the time and under the

       circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

       696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or

       bad tactics do not necessarily render representation ineffective. Shanabarger v.

       State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs

       of the Strickland test are separate and independent inquiries. Manzano v. State,

       12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.

       2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the

       ground of lack of sufficient prejudice . . . that course should be followed.’” Id.

       (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537

       U.S. 839 (2002)).


[13]   Trujillo first contends that his first trial counsel, Salinas, was ineffective in his

       representation of Trujillo during the pretrial proceedings and the Child Hearsay
       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 9 of 13
       hearing. Trujillo asserts that Salinas failed to use additional information at the

       Child Hearsay hearing that would have proven that C.M.’s statements were not

       as reliable as the State represented them to be. Trujillo argues that Salinas was

       ineffective for failing to assert that several statements contained in the nurse’s

       notes from C.M.’s initial assessment, which were admitted at the Child Hearsay

       hearing, called into question the reliability of the child hearsay. Trujillo also

       claims that Salinas was ineffective for failing to present any of the healthcare

       professionals who had firsthand knowledge of the investigation as expert

       witnesses to contradict the testimony given by Mother. Trujillo argues that

       Salinas was ineffective for failing to present evidence, contained in the DCS file

       admitted at the post-conviction hearing, that would have highlighted a

       discrepancy between the evidence reported to the DCS interviewer and the

       statement Mother made to the police. Trujillo asserts that if Salinas had

       presented this evidence, the outcome of his case would have been different.


[14]   The Protected Person Statute, Indiana Code section 35-37-4-6, allows for the

       admission of otherwise inadmissible hearsay evidence relating to specified

       crimes, the victims of which are deemed “protected persons.” Tyler v. State, 903

       N.E.2d 463, 465 (Ind. 2009). A statement or videotape that is made by a

       protected person, and which would otherwise be inadmissible hearsay, may be

       admitted in a criminal action involving a sex offense if it concerns a material

       element of the charged offense and if the court finds sufficient indicia of

       reliability and the protected person testified at trial or is found to be unavailable.

       Ind. Code § 35-37-4-6(e).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 10 of 13
[15]   Initially, we note that if it is easier to dispose of an ineffectiveness claim on the

       ground of lack of sufficient prejudice that course should be followed. Manzano,

       12 N.E.3d at 325. In order to prove prejudice stemming from ineffective

       assistance, a defendant must show a reasonable probability that, but for

       counsel’s unprofessional errors, the result of his criminal proceeding would

       have been different. Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). Here,

       Trujillo’s arguments amount to the contention that, if Salinas has presented

       certain evidence, the trial court would not have allowed the child hearsay to be

       introduced and there is a reasonable probability the outcome of his case would

       have been different. We disagree.


[16]   At Trujillo’s trial, the only child hearsay admitted from the child hearsay

       hearing was Mother’s recitation of what C.M. told her when she made her

       initial accusations against Trujillo. Appellant’s App. at 88, 135. C.M. testified at

       trial in English as to what Trujillo had done to her. Following her testimony,

       the trial court did not allow the videotaped statement of C.M’s statement to the

       police to be admitted, finding it cumulative. Id. at 88. In finding Trujillo guilty,

       the trial court specifically stated that it was basing its guilty determination on

       C.M.’s in-court testimony and not on the child hearsay. Id. at 91. The trial

       court noted, “C.M. is to be believed . . . [and] her testimony is worthy of

       credit.” Id. It went on to find that Mother’s recitation of what C.M. reported

       to her was “really of no moment” because it did not contribute to the trial

       court’s verdict. Id. Therefore, as the child hearsay was not used in the trial

       court’s finding of guilt, we conclude that Trujillo has not met his burden to


       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 11 of 13
       show a reasonable probability that the result of his criminal proceeding would

       have been different and that he was prejudiced by Salinas’s performance.


[17]   Trujillo next argues that his second trial counsel, Woodmansee, was ineffective

       in his representation of Trujillo during the bench trial. Trujillo contends that

       Woodmansee failed to make an adequate investigation into his case.

       Specifically, Trujillo asserts that Woodmansee failed to: (1) cross-examine

       Mitchell, the translator who was present when C.M. made a statement to the

       police; (2) utilize C.M.’s medical records to show that the allegations may have

       been coached; (3) cross-examine Mother regarding whether C.M.’s brother was

       in the apartment at the time of the molestation; (4) interview Lopez or call her

       as a witness; and (5) interview C.M.’s brother and object to his testimony

       regarding the discrepancy as to whether he was present in the apartment when

       the molestation occurred. Appellant’s Br. at 25-27. Trujillo claims that based on

       these substantial errors, prejudice is apparent.


[18]   “While it is undisputed that effective representation requires adequate pretrial

       investigation and preparation, it is well settled that we should resist judging an

       attorney’s performance with the benefit of hindsight.” McKnight v. State, 1

       N.E.3d 193, 200 (Ind. Ct. App. 2013). Therefore, when deciding a claim of

       ineffective assistance for failure to investigate, we apply a great deal of

       deference to counsel’s judgments. Id. at 201. Establishing failure to investigate

       as a ground for ineffective assistance of counsel requires going beyond the trial

       record to show what investigation, if undertaken, would have produced. Woods

       v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied, 550 U.S. 930 (1999).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 12 of 13
       This is necessary because success on the prejudice prong of an ineffectiveness

       claim requires a showing of a reasonable probability of affecting the result.

       McKnight, 1 N.E.3d at 201.


[19]   Trujillo has failed to establish that he suffered any prejudice due to

       Woodmansee’s decisions not to interview C.M.’s brother and Lopez, how to

       cross-examine certain witnesses, and in what manner to use the medical

       records. Trujillo merely states that Woodmansee made certain alleged mistakes

       in his representation of Trujillo, but not how the outcome of his trial would

       have been different. In finding Trujillo guilty at the conclusion of the bench

       trial, the trial court stated that it was basing its guilty determination on C.M.’s

       testimony, which the trial court found to be credible. Appellant’s App. at 91.

       Trujillo fails to explain how further investigation into the testimony of C.M.’s

       brother, Lopez, Mother, and Mitchell or the use of medical records would have

       resulted in a different outcome at trial. Additionally, although Trujillo claims

       Woodmansee was ineffective for failing to discuss the case with Salinas when

       Woodmansee took over the case, he has not shown any prejudice stemming

       from this lack of discussion. We, therefore, conclude that Trujillo has not met

       his burden of establishing that Woodmansee was ineffective. The post-

       conviction court did not err in denying his petition for post-conviction relief.


[20]   Affirmed.


[21]   May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-6 | October 31, 2016   Page 13 of 13
