MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Dec 20 2016, 5:59 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
Yvette M. LaPlante                                       Gregory F. Zoeller
Keating & LaPlante, LLP                                  Attorney General
Evansville, Indiana                                      Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kennedy Butler,                                          December 20, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A01-1512-PC-2269
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Respondent.                                     Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1504-PC-2156



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 1 of 14
[1]   Kennedy Butler appeals the denial of his petition for post-conviction relief.

      Butler raises one issue which we revise and restate as whether he was denied

      the effective assistance of trial counsel. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Butler’s direct appeal follow:

              E.D. is a twenty-eight-year-old woman with an I.Q. between fifty
              and fifty-eight. She was diagnosed with mild to moderate mental
              retardation in preschool, was taught functional life skills in her
              school’s special education program, and reads below a second
              grade level. She works at Long John Silver’s clearing tables,
              taking out the trash, filling the condiments stand, and taking
              orders to the tables. Butler also worked at Long John Silver’s
              and lived a few houses down the street from E.D., who lived
              with her parents.


              On July 11, 2008, E.D. returned home from work and ate lunch
              in her backyard. Butler stopped to talk to E.D., who invited
              Butler inside her home to look at her doll collection, which was
              in her bedroom. Butler told E.D. to take off her clothes and lie
              face down on her bed. Butler then “put his privates in her behind
              and made it hurt and bleed,” and E.D. told Butler that it was
              “bad” and she tried to kick him. Tr. p. 627. E.D. told Butler that
              she did not want to have sex with him, saying, “[g]o away, get
              up,” and “[g]et off me,” but Butler did not comply. Id. at 291.
              Eventually, E.D.’s father returned home, Butler left, and E.D.
              later told her mother what had happened. E.D. was taken to the
              hospital, where a doctor and nurse performed an examination
              that revealed a vaginal abrasion and tear that had caused E.D. to
              bleed.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 2 of 14
      Butler v. State, No. 82A05-0908-CR-481, slip op. at 2-3 (Ind. Ct. App. June 4,

      2010), trans. denied.


[3]   On July 25, 2008, the State charged Butler with rape and criminal deviate

      conduct as class B felonies. Id. at 3. On March 4, 2009, the State added an

      habitual offender enhancement. Id.


[4]   At the jury trial, Butler’s counsel submitted the following proposed instruction:

              In order to prove the defendant guilty as charged in Counts 1 and
              2 the State must prove beyond a reasonable doubt that Kennedy
              Butler knew that [E.D.] was so mentally disabled or deficient that
              she could not consent to either sexual intercourse or deviate
              conduct. The defendant has no burden to disprove this element
              and the burden of proof beyond a reasonable doubt is with the
              State at all times.


      Trial Transcript at 855. The court refused that instruction based on the belief

      that it was covered in other instructions. The trial court instructed the jury in

      part that “[b]efore you may convict [Butler], the State must have proved each of

      the following beyond a reasonable doubt . . . [E.D.] was so mentally disabled or

      deficient that consent to sexual intercourse could not be given.” Id. at 832.

      During closing argument, Butler’s trial counsel argued that E.D. was

      competent.


[5]   The jury found Butler guilty of rape as a class B felony and not guilty of

      criminal deviate conduct as a class B felony. Butler, slip op. at 3. Butler later

      admitted to being an habitual offender. Id. The court sentenced Butler to


      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 3 of 14
      fifteen years for the rape conviction and enhanced the sentence by twenty-five

      years for being an habitual offender for an aggregate sentence of forty years. Id.


[6]   On direct appeal, Butler argued that the evidence was insufficient to support his

      conviction for rape because the State failed to establish that E.D. was so

      mentally disabled that she was unable to consent and, even if she was unable of

      consenting, that he was aware of that fact. Id. at 4. This court held that

      “[c]apacity to consent ‘presupposes an intelligence capable of understanding the

      act [of sexual intercourse], its nature, and possible consequences.’” Id. (quoting

      Stafford v. State, 455 N.E.2d 402, 406 (Ind. Ct. App. 1983)). The record revealed

      that E.D. had an I.Q. of fifty to fifty-eight, which is considered mild to

      moderate mental retardation, that she reads below a second grade level, has a

      childlike vocabulary, and lived with her parents. Id. at 4-5. We observed that

      E.D. was able to work outside the home, but her employment was limited to

      clearing tables, taking out the trash, filling the condiments stand, and taking

      food out to the tables. Id. at 5. We held that the evidence was sufficient to

      support the State’s contention that E.D. was mentally disabled to an extent that

      she was incapable of understanding the act of sexual intercourse, its nature, and

      possible consequences. Id. We also held that it was reasonable for the jury to

      infer that Butler was aware of E.D.’s significant mental disability and that

      Butler’s arguments to the contrary were a request to reweigh the evidence and

      assess witness credibility, which we may not do. Id. at 6.


[7]   On December 6, 2010, Butler filed a pro se petition for post-conviction relief.

      On April 29, 2015, Butler, by counsel, filed an amended petition for post-

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 4 of 14
      conviction relief alleging in part that his trial counsel was ineffective for failing

      to instruct the jury regarding when an adult with a disability has the capacity to

      consent to sexual intercourse.


[8]   On September 18, 2015, the post-conviction court held a hearing. Butler’s trial

      counsel testified that he did not recall tendering a jury instruction regarding a

      victim’s competency to consent. When asked if he did not do so for any

      strategic purpose, trial counsel answered: “I don’t know if I would stay [sic]

      [s]trategic purpose no, my understanding of the law at the time was that the

      alleged victim was not capable of legally consenting so based upon my research

      at the time I didn’t see a need to tender that instruction.” Post-Conviction

      Transcript at 8-9. On cross-examination, trial counsel testified that the case was

      seven years ago and he did not exactly remember the defense. On redirect

      examination, Butler’s post-conviction counsel referred to a case adopting a

      standard that said the capacity to consent “presupposes an intelligence capable

      of understanding the act as nature and possible consequences” and asked if trial

      counsel relied on that case. Trial counsel stated that he would not have relied

      on that case because he did not believe that there was any evidence to support

      that E.D. was operating at a functional level. Id. at 12.


[9]   On December 4, 2015, the court denied Butler’s petition. In part, the court’s

      order states:


                                         FINDINGS OF FACT


                                                   *****

      Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 5 of 14
        13. . . . [Butler’s trial counsel] testified that neither he nor [co-
        counsel] tendered a jury instruction regarding the victim’s ability
        to consent to sexual activity although they did research the issue
        prior to trial. Based upon their research and the evidence,
        including a psychological evaluation of the victim, [trial counsel]
        believed that the victim was not functioning even close to a
        me[n]tal maturity level at which she would have had the capacity
        to consent to sexual activity at the time of the offense. Therefore,
        [trial counsel] did not see a need to submit a proposed jury
        instruction regarding a disabled person’s ability to consent to
        sexual activity.


                                             *****


                                CONCLUSIONS OF LAW


                                             *****


        7. Though [trial counsel] did not characterize his decision as part
        of any strategy, his decision not to request a jury instruction
        regarding victim’s capacity was a reasonable strategic decision.
        His testimony indicated that there was no evidence whatsoever
        that the disabled victim in this case had the capacity to make
        decisions regarding sexual activity. In fact, the evidence
        regarding this fact conflicted with a defense of consent. It is well-
        established the ineffective assistance of counsel claims cannot
        success [sic] based upon counsel’s strategic decisions, unless the
        strategy is so deficient or unreasonable as to fall outside the
        objective standard of reasonableness. Autr[e]y v. State, 700
        N.E.2d 1140, 1141 (Ind. 1998). The Court, therefore, does not
        find that [trial counsel’s] representation fell below the objective
        standard of reasonableness.


        8. Moreover, [Butler] has failed to present any evidence that he
        was prejudiced by his attorney’s failure to submit the proposed

Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 6 of 14
               instruction regarding capacity to consent. To the contrary, the
               testimony of [trial counsel] seems to indicate that had such a jury
               instruction been given, the jury would have had nothing but
               evidence that the victim did not have the capacity to consent to
               sexual activity at the time of the offense, thereby undermining the
               defense’s position. Consequently, without any evidence of
               prejudice, the Court cannot find that [Butler] received ineffective
               assistance of counsel as to his first allegation.


       Appellant’s Appendix at 185-190.


                                                   Discussion

[10]   Before discussing Butler’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. 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); Ind. Post-Conviction Rule 1(5).

       When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d

       at 679. On review, we will not reverse the judgment unless the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. Id. Further, the post-conviction court in this case

       entered findings of fact and conclusions thereon in accordance with Indiana

       Post-Conviction Rule 1(6). “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.” Id. In this

       review, we accept findings of fact unless clearly erroneous, but we accord no

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 7 of 14
       deference to conclusions of law. Id. The post-conviction court is the sole judge

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


[11]   The issue is whether Butler was denied the effective assistance of trial counsel.

       He argues that his trial counsel’s failure to tender a jury instruction on the

       standard regarding the ability of an individual with diminished mental capacity

       to consent, left the jury without guidance on the only disputed element of the

       crime. He cites Stafford v. State, 455 N.E.2d 402 (Ind. Ct. App. 1983), for the

       idea that the court adopted a standard of consent for a mentally incapacitated

       individual. Butler does not appear to specifically assert what instruction his

       trial counsel should have tendered, but argues that “[t]he standard, as adopted

       in Indiana, is whether or not the victim is capable of this type of understanding –

       not whether or not the victim has such an understanding at the time of the act.”

       Appellant’s Brief at 11. He points to the following trial testimony of Dr.

       Rebecca Luzio during direct examination:

               Q Okay. During your evaluation, did you, knowing what the
               allegations were in this case, did you discuss at all with [E.D.]
               about the consequences of sexual activity?


               A I didn’t.


               Q Do you have an opinion as to whether she understood . . .
               would understand this?


               A Uh, I think she might now, she’s probably been told, I’m not
               sure. But I think . . . I did not get that sense at that time.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 8 of 14
       Trial Transcript at 438. He also points to the testimony of E.D.’s mother in

       which she stated that she had talked with E.D. about sex, that it was not “real

       detailed,” that it is “where babies come from and mommies and daddies are

       married and they have children, it’s something that happens when you’re

       married,” and “that was a way for her . . . to understand it.” Id. at 356. Butler

       points out that the jury asked E.D.’s mother if she explained the act of sexual

       intercourse to E.D., and Mother answered “as far as the actual act, no I . . . I

       don’t think I’ve ever explained the actual act to her, just the concept.” Id. at

       404-405. He asserts that given the testimony of Dr. Luzio that E.D. might now

       understand and the testimony of E.D.’s mother, it is possible that the jury

       would have found that E.D. had the ability to understand sexual activity, which

       is what is required by Stafford.


[12]   The State argues that Butler cannot show that the trial court would have been

       compelled to give an instruction based upon Stafford and points out that the

       Stafford court’s interpretation was part of a sufficiency analysis. The State

       contends that Butler’s trial counsel knew that the trial court likely would have

       rejected such an instruction because it rejected a similar instruction that he

       proposed. It asserts that Butler cannot demonstrate that an instruction based

       upon Stafford would have made a difference and points to this court’s holding

       that the evidence was sufficient. The State also points to the record and asserts

       that the jury would have convicted Butler even with an instruction based upon

       Stafford.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 9 of 14
[13]   Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner 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.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). “[L]ogic dictates that ‘a verdict

       or conclusion only weakly supported by the record is more likely to have been

       affected by errors than one with overwhelming record support.’” Hilliard v.

       State, 609 N.E.2d 1167, 1169-1170 (Ind. Ct. App. 1993) (quoting Strickland, 466

       U.S. at 696, 104 S. Ct. at 2069)). Failure to satisfy either prong will cause the

       claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel

       claims can be resolved by a prejudice inquiry alone. Id.


[14]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’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

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 10 of 14
       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). 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 which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998).


[15]   At the time of the offense, Ind. Code § 35-42-4-1(a)(3) provided: “Except as

       provided in subsection (b), a person who knowingly or intentionally has sexual

       intercourse with a member of the opposite sex when. . . the other person is so

       mentally disabled or deficient that consent to sexual intercourse cannot be given

       . . . commits rape, a Class B felony.” 1


[16]   In Stafford, we addressed the defendant’s argument that the evidence was

       insufficient to support his conviction of rape because the State failed to prove

       that the victim was incapable of giving consent. 455 N.E.2d at 405. The court

       examined cases from Illinois and held that “[a]dopting the standard that

       capacity to consent presupposes an intelligence capable of understanding the

       act, its nature, and possible consequences and coupling it with our standard of



       1
        Subsequently amended by Pub. L. No. 158-2013, § 437 (eff. July 1, 2014); Pub. L. No. 214-2013, § 36 (eff.
       July 1, 2014); Pub. L. No. 168-2014, § 67 (eff. July 1, 2014).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016      Page 11 of 14
       review, there is sufficient evidence” that the victim was incapable of giving

       consent to sexual intercourse. Id. at 406.


[17]   To the extent Butler relies upon Stafford, we note that the Indiana Supreme

       Court has held that “the ‘mere fact that certain language or expression [is] used

       in the opinions of this Court to reach its final conclusion does not make it

       proper language for instructions to a jury.’” Keller v. State, 47 N.E.3d 1205,

       1209 (Ind. 2016) (quoting Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003)), reh’g

       denied. The Court also held that “[a]ppellate review of the sufficiency of the

       evidence . . . will ‘rarely, if ever,’ be an appropriate basis for a jury instruction,

       because the determination is fundamentally different.” Id. (quoting Garfield v.

       State, 74 Ind. 60, 64 (1881)).


[18]   We also observe that Butler’s trial counsel testified that his “understanding of

       the law at the time was that the alleged victim was not capable of legally

       consenting so based upon my research at the time I didn’t see a need to tender

       that instruction.” Post-Conviction Transcript at 8-9. Further, his trial counsel

       argued that E.D. was competent during closing argument. Specifically, he

       stated that “this is a consent case,” pointed out that E.D. rides a city bus five

       days a week by herself, holds a job, and goes to work five days a week. Trial

       Transcript at 783. He pointed to the testimony of E.D.’s father that E.D. would

       understand sexual conduct. Trial counsel asserted that E.D. was competent

       and was able to testify, understand the nature of the oath, and think for herself.

       Trial counsel also tendered a jury instruction which stated in part: “In order to

       prove the defendant guilty as charged in Counts 1 and 2 the State must prove

       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 12 of 14
       beyond a reasonable doubt that Kennedy Butler knew that [E.D.] was so

       mentally disabled or deficient that she could not consent to either sexual

       intercourse or deviate conduct.” Id. at 855.


[19]   The court refused that instruction based on the belief that “it was covered by the

       elements that are covered in Instruction No. 2 and No. 3, and also the

       definitions of intentionally and knowingly in Court’s Instruction No. 4

       particularly the last sentence in Court’s Instruction No. 4.” Id. at 796-797.

       Preliminary Instruction No. 3 informed the jury:

               In Count I, the statute defining the offense of Rape, a Class B
               felony, which was in force at the time of the offense charged,
               reads in part as follows: A person who knowingly or intentionally
               has sexual intercourse with a member of the opposite sex when
               the other person is so mentally disabled or deficient that consent
               to sexual intercourse cannot be given commits Rape, a Class B
               felony.


       Id. at 815. Final Instruction No. 2 also informed the jury of the elements of the

       offense and stated:

               Before you may convict the Defendant, the State must have
               proved each of the following beyond a reasonable doubt:


               1. The Defendant, Kennedy Butler


               2. knowingly or intentionally


               3. had sexual intercourse with [E.D.] when



       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 13 of 14
               4. [E.D.] was so mentally disabled or deficient that consent to
               sexual intercourse could not be given.


               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find Defendant not guilty of Rape,
               a Class B felony, as charged in Count 1.


       Id. at 832.


[20]   Under the circumstances, we cannot say that the evidence as a whole unerringly

       and unmistakably leads to a conclusion opposite that reached by the post-

       conviction court or that Butler has demonstrated ineffective assistance. See

       Merrill v. State, 716 N.E.2d 902, 906 (Ind. 1999) (holding that the defendant’s

       trial counsel was not ineffective for failing to tender an alibi instruction because

       the instruction was unlikely to change the outcome of the trial where the “jury

       heard his alibi defense and if it had believed him, could have returned a verdict

       in his favor” and the “jury also heard Merrill’s alibi witness deny being in the

       restroom with him”).


                                                   Conclusion

[21]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Butler’s petition for post-conviction relief.


[22]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1512-PC-2269 | December 20, 2016   Page 14 of 14
