MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Aug 22 2018, 10:05 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Robert Eric Posey                                        Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Eric Posey,                                       August 22, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         84A05-1711-PC-2808
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael R. Rader,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         84D05-1412-PC-3168



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018               Page 1 of 7
[1]   Robert Posey appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that he did not

      receive the ineffective assistance of trial counsel. Finding no error, we affirm.


                                                     Facts
[2]   The underlying facts of this case, as recounted by this Court in Posey’s direct

      appeal, are as follows:


              At the time relevant to this appeal, Posey attended a church in
              Terre Haute, Indiana, and drove parishioners to and from church
              using a van owned by the church. On June 17, 2009, Posey
              drove thirteen-year-old K.F. and her family to and from the
              church. On the drive home, Posey told K.F. that there was an
              activity planned for teens at the church the following day and
              that she should call him if she wanted to attend. The following
              day, K.F. obtained her father’s permission to attend the church
              event and called Posey to ask for a ride to the church.


              . . . Posey drove his personal vehicle to K.F.’s house to pick her
              up. When K.F. got in Posey’s vehicle, he did not take her to the
              church, but instead drove her to a horse stable. When K.F. asked
              why Posey had not driven to the church, he explained that he
              needed to pick up some items from his home. Posey then drove
              to his home. When Posey went inside, K.F stood at the door to
              wait for him. Posey then invited K.F. inside while he obtained
              the items he needed. Posey told K.F. to sit on the couch and
              play a video game while he was busy. Posey soon joined K.F. on
              the couch and showed her how to play the video game. As he
              did, he put his arm around the girl and began to kiss her. Posey
              then pulled K.F. close to him and took her into his bedroom.


              In the bedroom, K.F. attempted to run away, but tripped and fell
              onto the bed. Posey got on top of K.F. and removed his and
      Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018   Page 2 of 7
        K.F.’s clothing. Posey then briefly left the bedroom and went
        down the hallway to retrieve something, which K.F. thought was
        a condom. When he returned to the bedroom, he stopped K.F.
        from putting her clothes back on and began kissing her on her
        body, including her breasts and genital area. Posey then put a
        condom on and had sexual intercourse with K.F. while she
        physically resisted him. When Posey was finished, he gave K.F.
        a towel and told her to clean herself. K.F., who was in pain and
        bleeding from her vagina, ran into the bathroom and put her
        clothes back on. Posey then drove K.F. back home and told her
        not to tell anyone about what he had done to her.


        When K.F. got home, she took a bath, placed her clothes in the
        washer, and fell asleep. K.F. eventually told one of her friends
        what had happened, and that friend telephoned K.F.’s father and
        told him that he needed to speak with K.F. When her father
        questioned her, K.F. told him what had happened. K.F.’s father
        then consulted his parents and his ex-wife, K.F.’s mother. At
        one point, Posey called K.F.’s father and asked him not to bring
        criminal charges. The following morning, K.F.’s father took her
        to the hospital. After speaking with K.F. and her father, a nurse
        at the hospital contacted the police. The police then spoke with
        K.F. and her father and collected K.F.’s clothing. After
        obtaining a warrant to search Posey’s home, the police took a
        towel, the bed sheets, and a comforter from Posey’s home. The
        police also obtained blood samples from both K.F. and Posey.


Posey v. State, No. 84A01-1103-CR-97, at *1 (Ind. Ct. App. Dec. 13, 2011). The

State charged Posey with Class A felony child molesting; on December 2, 2010,

a jury found Posey guilty as charged. The trial court subsequently sentenced

Posey to thirty-five years imprisonment. Posey brought a direct appeal, arguing

that the trial court erred in admitting certain evidence and in denying Posey’s

motion for a mistrial. This Court affirmed. Id. at *5.

Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018   Page 3 of 7
[3]   On December 17, 2014, Posey filed a petition for post-conviction relief. He

      later amended the petition, arguing that he received the ineffective assistance of

      trial counsel. The post-conviction court held an evidentiary hearing on Posey’s

      petition on August 8, 2017. On November 6, 2017, the post-conviction court

      denied Posey’s petition. Posey now appeals.


                                   Discussion and Decision
[4]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “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 from 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 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).



      Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018   Page 4 of 7
[5]   Posey’s sole argument on appeal is that his trial counsel was ineffective, though

      he raises multiple reasons for the alleged ineffectiveness. A claim of ineffective

      assistance of trial counsel requires a showing that: (1) counsel’s performance

      was deficient by falling below an objective standard of reasonableness based on

      prevailing professional norms; and (2) counsel’s performance prejudiced the

      defendant such that “‘there is a reasonable probability that, but for counsel’s

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

      Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v.

      Washington, 466 U.S. 668, 687 (1984)). “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). “Failure to satisfy either of the two prongs will cause the claim to

      fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012).


[6]   Posey’s primary allegation of ineffectiveness centers around an argument that

      trial counsel failed to investigate the chain of custody for the physical items that

      were collected and used to obtain DNA evidence. At the post-conviction

      hearing, trial counsel testified that although after seven years, he could no

      longer recall the specifics of his work on Posey’s case, he did conduct an

      investigation in this case. Tr. Vol. II p. 13, 15-16, 18-20. Furthermore, counsel

      testified that he always investigates the chain of custody of evidence and that he

      found no cause for objecting to chain of custody here. Id. Additionally, the

      testimony of one of the crime scene investigators at the post-conviction hearing

      refutes any claim that there was an improper chain of custody or any tampering


      Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018   Page 5 of 7
      with the physical evidence collected in this case. Id. at 52-73. Given this

      record, we find that the post-conviction court did not err by determining that

      Posey did not meet his burden of showing that counsel’s performance fell below

      an objective standard of reasonableness.


[7]   Furthermore, K.F., the victim, testified at Posey’s trial. Her testimony, alone,

      would have been sufficient to support Posey’s conviction. E.g., Greenboam v.

      State, 766 N.E.2d 1247, 1257 (Ind. Ct. App. 2002) (noting that a “victim’s

      testimony, even if uncorroborated, is ordinarily sufficient to sustain a

      conviction for child molesting”). As such, Posey cannot show that he was

      prejudiced by anything related to the DNA evidence linking him to the crime.

      Therefore, the post-conviction court did not err by finding that Posey did not

      receive the ineffective assistance of trial counsel.


[8]   Posey’s remaining arguments, to the extent we are able to discern what they

      are, appear to be as follows: (1) counsel colluded with the prosecution and the

      police in manufacturing evidence; (2) counsel should have realized that certain

      witnesses in this case manufactured DNA evidence or committed perjury; and

      (3) counsel should have called the physician who performed the victim’s pelvic

      exam to testify. With respect to the first two assertions, there is no evidence

      whatsoever that remotely tends to support these claims. With respect to the

      third, Posey did not call the physician as a witness at the post-conviction

      hearing, so we have no way of knowing what the content of the testimony

      would have been. Therefore, the post-conviction court did not err by finding



      Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018   Page 6 of 7
      that Posey did not receive the ineffective assistance of trial counsel for any of

      these reasons.1


[9]   The judgment of the post-conviction court is affirmed.


      May, J., and Robb, J., concur.




      1
        Posey also attempts to raise a claim that fundamental error occurred in his trial, but this claim is not
      available in a post-conviction proceeding. Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 2008). Posey
      also references the use of an alleged evidentiary harpoon by the prosecutor, but this claim was argued and
      decided adversely to Posey in his direct appeal. Posey, at *2-3. Therefore, the issue is not available for review
      in this proceeding.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018               Page 7 of 7
