MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any
                                                                       Jan 28 2020, 7:17 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sean Patrick Hogan,                                      January 28, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1057
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         02D04-1710-PC-98



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020               Page 1 of 30
[1]   Sean Patrick Hogan appeals the denial of his petition for post-conviction relief.

      We affirm.


                                      Facts and Procedural History

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


              A.B. was born June 15, 1999 to J.B. (“Mother”) and [A.B.’s
              father]. In 2001, Mother and Hogan, who was at that time
              approximately twenty-six years old, began dating. When A.B.
              was about two-and-a-half years old, she, Mother, and Hogan
              began living together on Springbrook Road in Fort Wayne,
              Indiana. A.B. had visitation with Father on Mondays and
              Thursdays and every other weekend. At some point in early
              2003, Hogan and Mother had a child together, C.H.

              Hogan often watched A.B. and C.H. while Mother was at work.
              When A.B. was very young, Hogan introduced her to “the chair
              game,” where Hogan would tie A.B. up to a computer chair “and
              see if [she] could get out.” Tr. at 143. A.B. recalled, “He would
              just say if I could get out I could do whatever I wanted to do to
              him, and if I couldn’t then he could do whatever he wanted to
              me.” Id. at 145. Hogan always tied A.B. so securely that she
              couldn’t escape. At first, Hogan would just tickle A.B. when she
              could not escape. One day, when A.B. was five years old and
              failed to escape, Hogan told A.B., “what he was going to do he
              could go to jail for so I couldn’t tell anybody and that what he
              was going to do was going to make me feel like I had to pee.” Id.
              at 144. A.B. recalled, “He put his mouth on my vagina.” Id.

              A.B. recalled that Hogan’s abuse became worse as she grew
              older. A.B. said she “grew up thinking it was okay, that
              everything was okay” because Hogan “told me he was in love
              with me.” Id. at 147. The first time A.B. learned that Hogan’s
              conduct was not normal was when she was in the third or fourth
              grade at school and saw a video “on like how stuff wasn’t okay,”

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 2 of 30
        and saw that other people “didn’t have people calling them that
        much” or people who were “right by their sides” as she did. Id.
        at 148, 149.

        While A.B. was growing up, Hogan made her watch
        pornographic videos and, when A.B. was eight or nine years old,
        Hogan made two videos in which he made A.B. lie on top of him
        while Hogan simulated having sex with her. Id. at 152. Hogan
        later made A.B. watch one of the two videos. Prior to 2010,
        handcuffs became a part of Hogan’s “games.” Id. at 155, 156.
        A.B. testified that if she did not want to do something with
        Hogan, he would use handcuffs to attach her to bars on the bed
        frame and “sometimes belts with [her] hands and [her] legs.” Id.
        at 155. A.B. recalled that sometimes Hogan presented this
        behavior “more like it was a game” and that at other times, “it
        would be like, no, you have to do this.” Id. at 156. A.B. testified
        that if she expressed unwillingness, Hogan “would get really mad
        and say I was like betraying him and stuff like that.” Id. at 155.
        Hogan also would accuse A.B. of “cheating on him with
        somebody at [her] school.” Id. Sometimes A.B. screamed in
        protest, but she said, “[I]f I put up a fight, there was just going to
        be more. There was just going to be a bigger fight and nothing
        was going to work out. Either way it was going to happen.” Id.
        at 156.

        In 2010, after living on Springbrook Road for eight years, Hogan,
        A.B., C.H., and Mother moved into a hotel for about a month
        and then moved into a home on Fifth Street in Fort Wayne.
        A.B. recalled that, when she was ten or eleven years old, Hogan
        “made me do stuff to him”; he made me “put my mouth on his
        penis,” “put my hands on his penis,” and “rub all over him.” Id.
        at 151-52, 154. A.B. testified that while still living in Indiana,
        when she was younger than twelve years old, Hogan touched her
        “[a]ll over. My vagina, my breasts, my butt, everything.” Id. at
        163. When asked whether Hogan touched the inside or outside
        of her vagina, A.B. testified that Hogan used his fingers to touch
        her vagina “[i]n and out.” Id. A.B. also testified that Hogan

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 3 of 30
        would sometimes make her stand on an exercise machine in a
        position that allowed him to place his mouth on her vagina.

        On returning home from work one evening, Mother found A.B.
        in bed with Hogan. Hogan was cuddling A.B. and had his legs
        draped over her. Mother ended her relationship with Hogan and
        moved to Florida in May 2011, taking both A.B. and C.H. with
        her. A.B. was eleven when the family moved to Florida. Mother
        testified that, at that time, Hogan called A.B. about “35 times a
        day,” “and he would text her all day long.” Id. at 374. Hogan
        also sent frequent messages to A.B.’s Facebook page, in an effort
        to get her attention. Id.

        While living in Florida, A.B. and C.H. would return to Indiana
        periodically to visit their respective fathers. These visits occurred
        during winter break in 2011, during spring break in 2012, and
        during the summer of 2012. When A.B. returned to Indiana for
        visits, she visited Hogan’s house in order to see C.H. During
        those visits, Hogan made A.B. sleep in his bed and compelled her
        to engage in oral sex. One night, A.B., wanting to sleep in her
        sister’s room, refused to sleep in Hogan’s bed. At two o’clock in
        the morning, Hogan came into the room with “hot water and he
        poured it all over me, just because I didn’t want to sleep in his
        room.” Id. at 165. A.B. left C.H.’s room and went to sleep in
        Hogan’s room.

        During the summer of 2012, a custody battle resulted in A.B. and
        C.H. moving to Fort Wayne to live with their respective fathers.
        Thereafter, Hogan had regular contact with A.B. Father later
        explained that he helped Hogan get a job with Father’s employer
        so that Hogan could “get on his feet,” and he allowed Hogan to
        spend time with A.B. because Father thought that Hogan
        “always would take care of her and be there for her.” Id. at 455,
        456.

        When A.B. was in middle school, Hogan would drop off and
        pick up A.B. from school. Hogan was listed as one of the
        contacts to call in case of an emergency. Hogan frequently called

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 4 of 30
        and texted A.B. at school. At trial, A.B.’s science teacher
        recalled that Hogan’s constant texting and calling disrupted A.B.
        in school, leaving A.B. “agitated and upset.” Id. at 296, 298.
        The science teacher also remembered that A.B. was repeatedly
        called out of class to speak to Hogan on the phone in the front
        office. The science teacher heard some of the messages that
        Hogan left for A.B., “saying things that you don’t say to a
        thirteen year old.” Id. at 301. In one message, Hogan said,
        “[Y]ou’re my baby, I can’t live without you.” Id.

        The school’s principal personally recalled that Hogan called the
        school “[s]ometimes multiple times in a week[, s]ometimes
        multiple times in a day.” Id. at 315. The principal recalled that
        the volume of calls from Hogan to A.B. was unusually high and
        that Hogan also sent her gifts to school. When A.B. was not at
        school, Hogan would constantly call or text her while she was
        with friends or relatives. A.B.’s aunt went through A.B.’s cell
        phone and saw photographs from Hogan of girls wearing panties
        and short tops. In each of the photos, the girl had a pierced belly
        button, which A.B. said was something Hogan wanted her to get.
        Id. at 269.

        Bridgette, the mother of one of A.B.’s friends, recalled that it was
        “kind of creepy” how often Hogan called A.B. Id. at 414. When
        Bridgette told A.B. to turn off her phone, A.B. replied, “[N]o,
        [Hogan] will get mad, I can’t.” Id. at 415. When Bridgette
        discussed this with Hogan, he told her that A.B.’s father was the
        “bad dad” and that Hogan was “the good dad” who was trying
        “to keep [A.B.] on line.” Id. Bridgette testified that Hogan was
        not a father figure, but, instead, “acted like a jealous boyfriend.”
        Id.

        Around Christmas 2012, when A.B. was thirteen, Hogan secretly
        gave her a ring and told her it was her engagement ring. Id. at
        182. In the spring of 2013, Hogan made A.B. stay over at his
        house at least twice a week. Id. at 168. A.B. had to sleep in
        Hogan’s bed, and he would make her perform oral sex on him.
        Hogan would occasionally ejaculate on her and told A.B. that it
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 5 of 30
        would make her skin soft. Id. at 170. Hogan always told A.B.
        that he was in love with her, and that she “had to have a baby
        with him by the time she was seventeen.” Id. at 182. One night,
        when A.B. was thirteen years old, Hogan woke her up. Id. at
        170-71. A.B. realized that Hogan was about to abuse her again,
        later explaining “after that happens for so long you just know.”
        Id. at 171. Hogan disrobed and partially penetrated A.B.’s
        vagina with his penis. Id. A.B. felt pain and screamed, and
        Hogan rose and left the room. Id. C.H. was downstairs playing
        a video game. Id. at 172. C.H. responded to A.B.’s scream,
        asking what was wrong, but A.B. told C.H. that she had merely
        stubbed her toe. Id.

        A.B. recalled that she took pains to hide from C.H. what Hogan
        was doing because Hogan was C.H.’s dad, and since Mother
        “was not a very good mom,” A.B. said that she had “practically
        raised [her] sister.” Id. at 172-73. A.B. did not tell Mother about
        the abuse because she did not trust her. Id. at 174. Additionally,
        A.B. was coerced into silence by Hogan’s threats, recalling that
        “[Hogan] always told me that he would kill my dad, he would
        send me back to Florida with my mom . . . .” Id. at 175. A.B.
        was frightened for Father, later saying, “I love my dad with all
        my heart. He’s the only person . . . if I didn’t have him I would
        be in like foster care right now.” Id. at 176. A.B. was also afraid
        of returning to Florida, saying, “[M]y mom was a really bad
        mom. She was an abuser. She wasn’t a mom to me at all.” Id.
        Hogan also promised A.B. that if she told anyone what he was
        doing, “he would make it look like I did it, like it was my fault.”
        Id. at 174-75.

        A.B. eventually told her guidance counselor, explaining, “I was
        just fed up with everything, I couldn’t take it anymore, I couldn’t
        take him calling me so many times, I couldn’t take not being able
        to live a life as a teenager.” Id. at 175. The guidance counselor
        notified Child Protective Services, A.B.’s principal, and Father.
        Id. at 277, 278. A.B. showed her guidance counselor
        photographs on her cell phone that Hogan had sent her, one of

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 6 of 30
        which appeared to be an erect penis, covered by underwear.
        Meanwhile, Hogan called the school, and the principal told
        Hogan that he was no longer on A.B.’s contact list. Id. at 317.
        Hogan then called A.B.’s cell phone. A police officer took the
        call and told Hogan not to call again.

        Detective Bridget Glaser of the Fort Wayne Police Department
        interviewed Hogan and, later, retrieved Hogan’s cell phone from
        his vehicle with Hogan’s consent. Hogan’s cell phone was in
        four pieces – the “flip phone” itself was in two pieces and the
        battery and SIM card had both been removed. Id. at 537.
        Forensic examination of Hogan’s cell phone revealed that
        approximately 4,000 images had been deleted from the phone’s
        memory. Id. at 512.

        Hogan was charged with four counts of Class A felony child
        molesting, four counts of Class C felony child molesting, and one
        count of Class D felony dissemination of matter harmful to
        minors. The offenses were alleged to have occurred “[s]ometime
        during the period of time between the 15th day of June, 2004 and
        the 31st day of May, 2013.” Appellant’s App. at 15-23. A partial
        log of A.B.’s text messages was introduced at Hogan’s trial. That
        log revealed dozens of text messages sent from Hogan to A.B.
        On May 11, 2013, Hogan had texted A.B. twenty-five times,
        sending messages like, “Where is my pic,” “You have 2 min to
        call me or i call your teacher,” and “Dumb ass.” State’s Ex. 7.
        On May 25, 2013, Hogan texted A.B. thirty-six times within
        seven minutes with the one-word message, “Hello.” Id. Another
        message Hogan texted on this day was, “When you get ready for
        bed i come get you:).” Id. On May 30, 2013, the day A.B.
        reported the abuse, Hogan texted “See you in court” seven times
        within eleven minutes. Id. The following day, Hogan texted
        A.B. twice within five seconds, saying each time, “I called the
        police on your dad.” Id. A search of Hogan’s residence,
        pursuant to a warrant, uncovered a handcuff key. Tr. at 539.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 7 of 30
      Hogan v. State, No. 02A05-1404-CR-179, slip op. at 2-9 (Ind. Ct. App. January

      15, 2015), trans. denied. The jury convicted Hogan as charged. Id. at 9. The

      court sentenced him to an aggregate sentence of 120 years. Id. at 10.


[3]   On direct appeal, Hogan argued that his sentence was inappropriate and the

      trial court’s application of the 2008 “credit restricted felon” designation to

      Counts II, III, and IV violated the constitutional prohibition against ex post

      facto laws. Id. at 2. We affirmed. Id.


[4]   On October 25, 2017, Hogan filed a petition for post-conviction relief alleging

      he received deficient assistance from trial counsel, and the State and its

      investigators violated Brady v. Maryland and committed prosecutorial

      misconduct. On June 29, 2018, and August 17, 2018, the court held evidentiary

      hearings. Attorney Joshua Isaac Tourkow testified Hogan retained him to

      work on the case involving the custody of C.H., there was a related proceeding

      involving her half-sibling, A.B., he represented both of the fathers, Hogan was

      reported as an alleged abuser, and the abuse was unsubstantiated. He also

      testified he did not recall discussing the custody battle with Hogan’s trial

      counsel.


[5]   The court admitted a 2012 Department of Child Services (“DCS”) report as

      Petitioner’s Exhibit B. The report stated in part that DCS received a

      notification on July 23, 2012, of safety concerns regarding A.B. involving a

      witness observing Hogan grabbing A.B. “all over as in the groin and breast

      area.” Petitioner’s Exhibit B. The report also stated A.B. was interviewed by


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 8 of 30
      Supervisor Andrea Goebel at the Center for Children on July 26, 2012,

      Supervisor Goebel asked her why she believed she was brought to the Center to

      be interviewed, A.B. stated “[b]ecause they think that my dad, Sean touched me

      sexually,” and “[A.B.] denied that her stepfather had ever tongue kissed her,

      touched her groin area or her breasts” and “stated that no one has ever touched

      her inappropriately and stated that she feels safe around her dad, [A.] and her

      dad Sean.” Id. The report concluded that the allegation was unsubstantiated.


[6]   Attorney Samuel Bolinger testified he represented Hogan at trial, there was a

      plea offer by the State of forty years, and he advised Hogan that, after reviewing

      the evidentiary package, there was a substantial risk to him to go forward with

      trial and he could face a “very, very lengthy jail time.” Post-Conviction

      Transcript Volume II at 36. He testified that he conducted a telephonic

      deposition of C.H. who was in Florida, he moved to admit the deposition at

      trial, and the trial court denied the motion. When asked why he thought C.H.

      would have been a favorable witness, he answered: “She may have attested that

      the allegations that A.B. made never occurred. But at the same time she was

      never notified of those, what I’ll call contacts, or allegations, so when asked

      point blank in her deposition, she simply responded as I read down the list of

      allegations that that’s how she responded.” Id. at 42.


[7]   Hogan’s counsel introduced and the court admitted a transcript of C.H.’s

      deposition as Petitioner’s Exhibit G. In her deposition, C.H. indicated she did

      not observe Hogan touch A.B. on her buttocks, breasts, or vagina. C.H. also



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 9 of 30
       stated that A.B. slept in Hogan’s bed, and that she, C.H., slept on the floor

       when A.B. would sleep in the bed with Hogan.


[8]    The court admitted a taped interview of C.H. as Petitioner’s Exhibit L. During

       the interview, C.H. stated A.B. visited her, A.B. had her own room but she

       slept on the couch a lot, A.B. sometimes slept in Hogan’s room, and they slept

       on the floor or on the bed when they slept in Hogan’s room. When asked if

       there were ever times A.B. slept in Hogan’s room without her, she answered in

       the negative. She indicated there were times when A.B. slept in the bed with

       Hogan but she, C.H., would get in the middle.


[9]    Hogan testified that his trial counsel visited him in jail four times, he did not

       know where his daughter, C.H., was once he was arrested, and he wanted his

       trial counsel to use C.H. as a witness because “whenever . . . A.B. would come

       over and wherever A.B. went C.H. was there, no matter what.” Post-

       Conviction Transcript Volume II at 94. He testified he never had a pair of

       handcuffs and “would never own a pair let alone put a pair on somebody.” Id.

       at 95.


[10]   On April 8, 2019, the court denied Hogan’s petition. The court’s order

       provides:


                                          FINDINGS OF FACT

                                                     *****

                6. A.B. briefly testified at trial about “the custody battle.” Tr.
                166. In a discussion at the bench outside the hearing of the jury,

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 10 of 30
           the Court later ruled that “[d]elving into the nature of the custody
           fight is irrelevant.”[ 1] Tr. 384. Nevertheless, at the post-
           conviction hearing, the Court allowed Petitioner to present
           testimony about the custody dispute from Attorney Joshua
           Tourkow, who represented both Petitioner and A.B.’s father in
           successfully obtaining custody of C.H. and A.B., respectively.
           Attorney Tourkow mentioned that there had been allegations of
           abuse, but did not suggest that A.B. could have fabricated or
           repeated such allegations in an effort to influence the outcome of
           the custody dispute. In regard to the possibility that A.B. might
           have had a motive to do so, it is relevant that A.B. testified at
           trial that she had been induced to deny the abuse by Petitioner’s
           threats, the “big one” of which was that “he would send me back
           to Florida with my mom[.]” Tr. 175. A.B. explained that this
           was such a big threat “[b]ecause my mom was a really bad mom.
           She was an abuser. She wasn’t a mom to me at all.” Tr. 176. As
           to her father, in contrast, she testified that “I love my dad with all
           my heart.” Id.

           7. A.B. testified at trial that “in the summer that they got custody
           of me, which was 2012, there was allegations made against Sean
           and I denied everything[.]” Tr. 174. A report dated September
           5, 2012, of an investigation of alleged child abuse or neglect by
           the Indiana Department of Child Services (DCS), indicated that
           A.B. did, in fact “den[y] everything.” Specifically, the report
           stated that “[A.B.] denied that her stepfather [Mr. Hogan] had
           ever tongue kissed her, touched her groin area or her breasts.
           [A.B.] stated that no one has ever touched her inappropriately
           and stated that she feels safe around her dad, Alan and her dad
           [sic] Sean [Hogan].” Petitioner’s Exhibit B. Attorney Bolinger
           did not cross-examine A.B. about her admitted denial of
           “everything.” A.B. also testified at trial that, before she disclosed
           the abuse to her counselor, her counselor had previously asked




1
    Most of the bracketed text appears in the post-conviction court’s order.


Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 11 of 30
        her “if he [Petitioner] had ever done anything to me”; A.B.
        “denied it” and said “I don’t know what you’re talking about.”
        Tr. 175. She explained that she denied it because “[h]e made so
        many threats to me, and I was scared”; she went on to elaborate
        at some length about the threats. Tr. 175-176.

        8. Attorney Bolinger did not subpoena C.H. to testify at trial,
        and unsuccessfully ordered a telephonic deposition of C.H. in
        lieu of live testimony. In her deposition (Petitioner’s Exhibit G),
        C.H. testified [that she did not see Hogan touch A.B. on her
        buttocks, breasts, or vagina, answered affirmatively when asked if
        A.B. ever slept in Hogan’s bed, and that she, C.H., slept on
        Hogan’s floor while Hogan slept in bed with A.B.]. In a recorded
        statement, C.H. had stated that she sometimes did sleep in the
        bed with A.H. and Petitioner, but she (C.H.) always slept in the
        middle.

        9. In a letter dated November 1, 2013, Attorney Bolinger
        recommended that Petitioner accept a plea agreement. The
        reasons for Attorney Bolinger’s recommendation were basically
        that the evidence against Petitioner was quite strong, the risk of
        going forward was great, Petitioner was potentially facing over
        140 years in prison, and the plea agreement would provide for a
        sentence of 40 years. Petitioner’s Exhibit F, at 1-2. Petitioner
        claimed that he was innocent and declined to accept the State’s
        plea offer.

                                              *****

        11. Petitioner denied that any of the charged offenses had
        occurred. Tr. 564-588. A.B. was like a daughter to him, he said,
        and he disciplined her. Tr. 564, 567. She programmed his
        phone, and he made repeated calls to make sure she was where
        she was telling him she was. Tr. 569. He called her school often
        because, he said, she was missing a lot of time. Tr. 571. He also
        texted her a lot to verify that she wasn’t getting in trouble [Tr.
        577]; he said she kept getting into fights at school, 12 to 14 of
        them [Tr. 600]. He sent her one or three pictures of girls with

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 12 of 30
        belly rings in order to instruct her that she was not to get one,
        although her dad had said she could. Tr. 586 (one picture), 598
        (three pictures). He grounded her [id.]; he said she got annoyed
        and angry when he disciplined her [Tr. 568], and in the spring of
        2013 she got mad because she went to a friend’s house where she
        was not allowed to go [Tr. 588]. She cried a lot, Petitioner said,
        and she was a “drama queen.” Tr. 588. He did not know
        whether he had texted her saying that he “felt like shit,” “like a
        used dirty tampon,” and he felt “used and lied to.” Tr. 605. He
        did not recall having texted her saying that he felt “worthless and
        like a shitty sucker taken advantage of all the time, lies and love,
        too much hurt, in pain, too much hope she would do that again,
        too stupid to know the truth, the sucker.” Tr. 605-606. He knew
        nothing about a text, apparently sent by him to A.B., saying
        “when you get ready for bed, I come get you.” Tr. 606-607.
        Finally, he acknowledged that he had told Detective Bridget
        Glaser that “you need to go check him [A.B.’s father] out
        because he’s the one that’s obsessed with her. He wants to tattoo
        himself . . . all the way down to his butt with her.” Tr. 608-609.
        Witness Amy Jacobowitz testified that Petitioner’s response to
        the allegations against him was as follows: “When I told him
        that, you know, he was going to be on administrative leave [from
        work as a result of the investigation of the allegations], he just
        looked at me and said, I didn’t do anything, she just . . . [A.B.] is
        just mad at me for grounding her.” Tr. 438.

        12. Guidance counselor Anita Nevils, when asked at trial
        whether A.B. had attendance problems or was skipping school,
        said, “No. None what so ever.” Tr. 271. She also testified that
        A.B. was not “in a lot of trouble with fights or things at school”
        [Tr. 271-271] and that it was not common for parents to call their
        children at school to see where they were [Tr. 286]. Science
        teacher Debra Calvin testified that A.B. was a very good, bright
        student, who did not have excessive absences from her science
        class and did not have disciplinary problems or fights. Tr. 294-
        295. School Principal Matt Schiebel, though he acknowledged
        that he did not “monitor all 900 of our kids,” likewise testified

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 13 of 30
        that A.B. was not getting into fights or having disciplinary
        problems at school, and he did not recall A.B. having an extreme
        attendance problem. Tr. 315. He also testified that he heard a
        voice mail message from A.B.’s phone from a person who
        appeared to be Petitioner, containing “a lot of love of my life type
        of comments that to me just seemed not appropriate for a
        student.” Tr. 318. A.B.’s best friend [H.] testified that A.B. told
        her “once in third grade he [Petitioner] molested me” and that
        A.B. “begged me not to tell anyone, so I didn’t.” Tr. 404. A.B.’s
        friend [B.] testified that Petitioner sometimes touched A.B. on
        her butt [Tr. 421], and that once A.B. said to her, “Oh my God,
        Sean [Petitioner] just sent me a picture” which, [B.] observed,
        showed a naked lady with her breasts visible [Tr. 424].

                                CONCLUSIONS OF LAW

                                              *****

        3. Had Attorney Bolinger done everything that Petitioner wishes
        he had done, the events of the original proceeding might have
        been different in the following ways. Additional evidence
        regarding the custody dispute might have been admitted, had the
        Court somehow been induced to change its ruling that “[d]elving
        into the nature of the custody fight is irrelevant” [Findings of
        Fact, ¶ 6]. The 2012 DCS report (Petitioner’s Exhibit B) might
        have been offered to corroborate A.B.’s acknowledgment that she
        “denied everything” in 2012 [id., ¶ 7]. C.H. might have given
        testimony consistent with her earlier statements [id. ¶ 8].
        Attorney Bolinger might have refrained from recommending that
        Petitioner accept the State’s plea offer [id., ¶ 9]. . . . For the
        following reasons, Petitioner has not shown a reasonable
        probability that the outcome of the original proceeding would
        have been different even if all these things had occurred.

        4. Petitioner asserts that evidence regarding the custody dispute
        was “crucial to [his] defense” [Petitioner’s Brief, at 7], but he
        appears to give no hint as to why this is supposed to be so.
        Hypothetically, evidence regarding a custody dispute might be

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 14 of 30
        relevant if it tended to show that an alleged child victim had
        fabricated or repeated allegations of abuse in hope of influencing
        the outcome of the custody dispute, so as to reside with the
        parent preferred by the alleged victim. In the present case,
        however, A.B.’s testimony indicated that she strongly preferred
        her father (who, like Petitioner, lived in Fort Wayne) over her
        mother (who lived in Florida) [Findings of Fact, ¶ 6].
        Allegations that Petitioner had abused her would have had no
        tendency to influence the dispute in favor of allowing her to
        reside with her father rather than her mother, and indeed might
        have had the opposite tendency – inasmuch as her father, living
        in the same city as Petitioner and regarding him as a trusted
        friend [id., ¶ 5], had failed to prevent the alleged abuse. No
        evidence would suggest that A.B. was lying about which parent
        she preferred. For these reasons, evidence regarding the custody
        dispute would have done nothing to cast doubt upon the
        credibility of A.B.’s extremely detailed account, nor to affect the
        outcome of the original proceeding in any way.

        5. Counsel will not be found ineffective for failing to present
        cumulative evidence. Chupp v. State, 509 N.E.2d 835, 839 (Ind.
        1987). A.B. admitted at trial that, in 2012, she “denied
        everything” regarding allegations that Petitioner had abused her
        [Findings of Fact, ¶ 7]. The 2012 DCS report [Petitioner’s
        Exhibit B] would simply have shown the same thing, that she
        “denied everything,” and therefore would have been merely
        cumulative. Furthermore, her explanation of why she also
        denied any abuse by Petitioner when questioned by her counselor
        – i.e., that Petitioner had made many threats to her and she was
        scared [Findings of Fact, ¶ 7] – would have applied equally well
        to her denial of any abuse in the 2012 DCS investigation.
        Petitioner has made no showing that Attorney Bolinger could
        have done anything to increase the credibility of A.B.’s
        acknowledged denial of abuse in 2012, nor to decrease the
        credibility of her account at trial by further comparison with her
        denial in 2012. The 2012 DCS report, if presented at trial, would
        have done nothing to affect the outcome.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 15 of 30
        6. C.H.’s deposition established that C.H. did not remember
        having observed anything relevant to Petitioner’s case [Findings
        of Fact, ¶ 8]. Had C.H. given the same testimony at trial, any
        effect of such testimony upon the outcome could only have
        arisen from an inference that events not remembered by C.H. did
        not occur because she would have observed and remembered
        them had they occurred. No evidence, at trial or in this post-
        conviction proceeding, suggested that any of the charged offenses
        were alleged to have occurred on any occasion when C.H. could
        have observed that they were occurring. Indeed, as noted by the
        Court of Appeals, A.B. took pains to prevent C.H. from finding
        out about the abuse [id., ¶ 5].

        7. A.B.’s testimony does include two specific mentions of fairly
        striking events, at least tangentially relevant, that C.H. might
        arguably have been expected to remember if she had observed
        them. One is the incident in which, A.B. testified, Petitioner
        poured hot water on her while she was sleeping in C.H.’s room;
        the other is the incident in which, A.B. testified, she screamed
        when Petitioner was beginning to engage in sexual intercourse
        with her, and soon afterward she told C.H. that she had merely
        stubbed her toe [Findings of Fact, ¶ 5]. Had C.H.’s testimony
        that she did not remember these incidents been presented at trial,
        the jury conceivably might have found that C.H. did not observe
        these events and therefore they might not have happened as
        related by A.B. On the other hand, the jury might simply have
        found that the memory of C.H. (who remembered nothing
        relevant) was not nearly as good as that of A.B. (who testified
        about her detailed memory of a very large number of events).
        For the following reasons, in view of the evidence presented at
        trial as a whole, there is no reasonable probability that C.H.’s
        testimony would have affected the outcome if presented at trial.

        8. Like A.B. at the time of the 2012 DCS investigation,
        Petitioner “denied everything” at trial as to alleged abuse of A.B.
        – but he did not stop there. His testimony [Findings of Fact, ¶
        11] suggested possible exculpatory explanations (and sometimes

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 16 of 30
        a remarkable lack of memory) regarding his own actual or
        apparent conduct, as well as a possible motive for A.B. to testify
        falsely, and a possible alternate perpetrator of the alleged abuse.
        Interpreting Petitioner’s testimony in such a way as to emphasize
        the portions with maximum purported exculpatory significance,
        one might fairly summarize that testimony and its implications as
        follows. Petitioner was simply acting like a concerned parent, in
        lieu of A.B.’s father who failed to do so. A.B. needed intensive
        supervisions, and Petitioner provided it by intensive calling and
        texting, as well as illustrating what she was not to do. A.B.
        became highly displeased when Petitioner disciplined her. Being
        a “drama queen”, A.B. retaliated for the discipline by going all
        out to discredit Petitioner and put him in prison for a very long
        time, by fabricating an extremely detailed account of abuse
        occurring over many years. Being also a skillful phone-
        programmer, perhaps she altered the content of his text messages
        to make it falsely appear that he had used language such as
        “shitty sucker,” “used and dirty tampon,” “Where is my pic,”
        “Dumb ass,” “When you get ready for bed [I] come and get
        you,” and so on, which would appear to be inconsistent with
        rational parental or pseudo-parental discipline. (Petitioner did
        not suggest any explanation, however, for the voice mail
        messages containing expressions such as “love of my life,”
        “You’re my baby, I can’t live without you,” and the like.)
        Because her real father did not discipline her, in contrast, A.B.
        was willing to overlook her father’s obsession with her; indeed,
        perhaps she did not invent her account of Petitioner’s abuse, but
        simply alleged that Petitioner had done what her father had really
        done, all because of her vindictive outrage at Petitioner for
        disciplining her.

        9. Petitioner claims his case was a “he said, she said” case, and
        “essentially a credibility contest between Hogan and A.B.”
        Petitioner’s Brief, at 6. What “he said” was basically that (1)
        A.B. was lying about everything because she was displeased
        about being disciplined, (2) Petitioner did not know whether he
        had sent objectionable texts to her or not, and (3) A.B.’s father,

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 17 of 30
        not Petitioner, was obsessed with A.B. In order to find that
        Petitioner’s testimony created a reasonable doubt as to his guilt,
        the jury would have had to reach one of two remarkable and
        highly improbable conclusions. Either the “drama queen” A.B.
        might have displayed exceptional creativity and skill in
        fabricating her entire account and forging objectionable text
        messages to be attributed to Petitioner or else A.B. might not
        have fabricated her account in its entirety, but simply substituted
        Petitioner for her father as the perpetrator – and forged
        objectionable text messages to be attributed to Petitioner.

        10. Furthermore, any minimal credibility that what “he said”
        might have had, when considered simply in contrast to what “she
        said,” would have been entirely destroyed by other evidence,
        even if C.H. had testified at trial. Petitioner’s explanation of why
        he called and texted A.B. at school so often – that he needed to
        supervise her closely because she was “missing a lot of time”
        from school and getting into many fights – was contradicted by
        A.B.’s guidance counselor, her science teacher, and her school
        principal [Findings of Fact, ¶ 12]. This conduct on Petitioner’s
        part was not common, even for a real parent [id.]. Petitioner had
        no explanation or denial of calling A.B. about 35 times a day,
        texting her all day long, and sending frequent messages to her
        Facebook page while she was in Florida, as reported by A.B.’s
        mother [id., ¶ 5]. Another real parent, [H.’s] mother Bridgette
        [id.], found Petitioner’s constant calling (while A.B. was not at
        school) to be “creepy” and observed that Petitioner acted like a
        jealous boyfriend, not a father figure. Petitioner did not explain,
        and could not well have denied, his voice mail messages
        containing expressions such as “love of my life” [id. ¶ 12] and
        “You’re my baby, I can’t live without you” [id., ¶ 5]. The
        evidence of Petitioner’s text messages, containing additional
        unsuitable expressions, was not really called into question by
        anything other than Petitioner’s baseless suggestions and his
        claimed lack of memory [id., ¶ 11]. No evidence cast doubt upon
        A.B.’s prior consistent statement that Petitioner had molested
        her, as reported by her friend [H.], nor upon her friend [B.’s]

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 18 of 30
        personal observations of improper touching and her report that
        A.B. immediately identified Petitioner as the sender of the
        indecent picture seen by [B.] [id., ¶ 12]. In short, the great weight
        of evidence, other than what “he said” or “she said,” was
        strongly consistent with what “she said.” That evidence
        established that Petitioner was a fake father figure, obsessed with
        A.B. in a manner entirely consistent with A.B.’s allegations.

        11. For the reasons stated above, C.H.’s testimony would have
        had little or no tendency to affect the outcome if presented at
        trial. The jury would most likely have found that A.B.’s memory
        was simply much better than that of C.H., explaining why A.B.
        remembered the events in question and C.H. did not. Even if
        C.H.’s testimony had cast doubt upon the two parts of A.B.’s
        testimony specified above [Conclusions of Law, ¶ 7], those parts
        were minor and tangential in relation to A.B.’s entire account.
        There is no reasonable probability that the jury would have
        concluded that the two specified events did not occur as narrated
        by A.B. – and, even if the jury had somehow drawn that unlikely
        conclusion, there is no reasonable probability that the jury would
        have concluded that A.B. was lying about Petitioner’s
        commission of the charged offenses.

        12. Indiana law does not allow a judge to accept a plea of guilty
        when the defendant both pleads guilty and maintains his
        innocence at the same time, but does allow a judge to accept a
        plea of guilty from a defendant who maintained his innocence at
        a previous time, even very shortly before the defendant ultimately
        entered the guilty plea. See Frazier v. State, 490 N.E.2d 315 (Ind.
        1986); Bland v. State, 708 N.E.2d 880 (Ind. Ct. App. 1999).
        Attorney Bolinger did not recommend that Petitioner should try
        to plead guilty while maintaining his innocence at the same time,
        but did suggest that Petitioner should change his mind about
        whether to continue to maintain his innocence in view of the
        strength of the evidence against him, the risk going forward, and
        the benefit available through acceptance of the plea agreement
        [Findings of Fact, ¶ 9]. In any event, as Petitioner did not accept

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 19 of 30
        the State’s plea offer, Attorney Bolinger’s recommendation that
        he accept the offer ascertainably had no effect on the outcome of
        the original proceeding, and therefore resulted in no prejudice to
        Petitioner’s defense.

        13. A claim of prosecutorial misconduct requires a
        determination (1) that there was misconduct by the prosecutor,
        and (2) that it had a probable persuasive effect on the jury’s
        decision. Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998)[, reh’g
        denied]. Petitioner alleges that the State engaged in misconduct
        by failing to disclose the 2012 DCS report and failing to establish
        a proper chain of custody for Petitioner’s handcuff key. Neither
        instance of alleged misconduct had any probable persuasive effect
        on the jury’s decision. Had the 2012 DCS report been
        unquestionably disclosed and had it been used at trial, it would
        have been merely cumulative of A.B.’s own acknowledgment
        that she “denied everything” in 2012 [Findings of Fact, ¶ 7]. The
        jury would not have been persuaded to disbelieve A.B.’s account
        of the charged offenses by documentary evidence indicating that
        A.B. was telling the truth at trial when she said she “denied
        everything” in 2012. . . . Because a claim of prosecutorial
        misconduct would have had no merit, Attorney Bolinger cannot
        be found ineffective for failing to raise such a claim. Vaughn v.
        State, 559 N.E.2d 610, 615 (Ind. 1990) (counsel will not be
        deemed ineffective for failing to present a meritless claim).

        14. As may be seen above, the probability that Attorney
        Bolinger’s various claimed errors affected the outcome of
        Petitioner’s trial is as follows: custody dispute, none
        [Conclusions of Law, ¶ 4]; 2012 DCS report, none [id., ¶ 5];
        C.H.’s testimony, little or none [id., ¶¶ 6-11]; plea agreement,
        none [id., ¶ 12]; prosecutorial misconduct, none [id., ¶ 13].
        Taken together, the effect of the claimed errors falls far short of
        amounting to a reasonable probability of a different outcome,
        sufficient to undermine confidence in the outcome of Petitioner’s
        trial. Attorney Bolinger therefore cannot be found ineffective,
        and Petitioner is not entitled to post-conviction relief.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 20 of 30
       Appellant’s Appendix Volume II at 119-136.


                                                    Discussion

[11]   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. “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 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.


[12]   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


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 21 of 30
       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). 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.


[13]   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

       (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).


[14]   Hogan argues that he received ineffective assistance of trial counsel because his

       counsel attempted to convince him to take a plea agreement despite knowing he

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 22 of 30
       maintained his innocence, failed to obtain and utilize the 2012 DCS report,

       failed to subpoena C.H. to testify at trial or present her taped statement, and

       failed to utilize evidence regarding the custody battle as a circumstance leading

       to the criminal charges against him.


       A.      Guilty Plea


[15]   The United States Supreme Court has held that “as a general rule, defense

       counsel has the duty to communicate formal offers from the prosecution to

       accept a plea on terms and conditions that may be favorable to the accused.”

       Missouri v. Frye, 566 U.S. 134, 145, 132 S. Ct. 1399, 1408 (2012). Hogan’s trial

       counsel testified there was a plea offer by the State of forty years and he advised

       Hogan that, after reviewing the evidentiary package, there was a substantial risk

       to him to go forward with trial and he could face a “very, very lengthy jail

       time.” Post-Conviction Transcript Volume II at 36. Hogan did not accept the

       plea agreement. We cannot say Hogan demonstrated his trial counsel’s

       performance was deficient or he was prejudiced.


       B.      DCS Report


[16]   Hogan asserts the 2012 DCS report indicates A.B. denied being molested by

       him. The 2012 DCS report contained an allegation that Hogan grabbed A.B. in

       the groin and breast area and that A.B. denied the allegation. As pointed out

       by the post-conviction court, A.B. testified at trial that there were allegations

       against Hogan in 2012, stated that she initially denied everything, and described

       telling her counselor what happened because she could not “take this

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 23 of 30
       anymore.” Trial Transcript Volume I at 175. When asked why she initially

       denied the allegations against Hogan, she answered:


               He made so many threats to me, and I was scared. I don’t know.
               He always told me that he would kill my dad, he would send me
               back to Florida with my mom, that’s the big one. He would end
               [sic] me back to Florida with my mom or he would always make
               it, if I ever did tell he would make it look like I did it, like it was
               my fault.


       Id. at 175-176. She also testified that her mother was a “really bad mom” and

       “an abuser” and she loved her father “with all [her] heart.” Id. at 176.


[17]   During the post-conviction hearing, the following exchange occurred during the

       direct examination of Hogan’s trial counsel:


               Q Okay, and in fact you had seen [the 2012 DCS report], is that
               something that you should have used?

               A I don’t think it would have changed the course of the battle
               plan.

               Q The fact that the same complaining witness previously was
               interviewed and said nothing happened to her?

               A I would still stick with that line. She also attested, if my
               memory serves correctly that for many years while the conduct
               ensued prior to the DCS investigation –


       Post-Conviction Transcript Volume II at 52. Hogan’s trial counsel also stated

       that A.B. “also attested that during, when she was three until she turned

       thirteen she denied all of the conduct until she broke down at school . . . .” Id.

       at 53. Under the circumstances, we cannot say reversal is warranted on this
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 24 of 30
       basis. See Chupp v. State, 509 N.E.2d 835, 838-839 (Ind. 1987) (defense

       counsel’s failure to present exculpatory statement by victim not ineffective

       assistance where victim made same statement in court under oath); Williams v.

       State, 508 N.E.2d 1264, 1268 (Ind. 1987) (“counsel’s failure to present

       exculpatory evidence may not constitute ineffective assistance where that

       evidence is introduced to the jury through other witnesses”).


[18]   To the extent Hogan asserts that the State’s failure to include the 2012 DCS

       report was a violation of Brady v. Maryland, 373 U.S. 83 (1963), and violated

       his right to due process, we observe under Brady that the State has an

       affirmative duty to disclose material evidence favorable to the defendant. State

       v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012). “To prevail on a Brady claim, a

       defendant must establish: (1) that the prosecution suppressed evidence; (2) that

       the evidence was favorable to the defense; and (3) that the evidence was

       material to an issue at trial.” Id. (quoting Minnick v. State, 698 N.E.2d 745,

       755 (Ind. 1998) (citing Brady, 373 U.S. at 87, 83 S. Ct. 1194), reh’g denied, cert.

       denied, 528 U.S. 1006, 120 S. Ct. 501 (1999)). Evidence is material when there

       is a reasonable probability that, had the evidence been disclosed to the defense,

       the result of the proceeding would have been different. Id. The State will not

       be found to have suppressed material information if that information was

       available to a defendant through the exercise of reasonable diligence.

       Stephenson v. State, 864 N.E.2d 1022, 1057 (Ind. 2007), reh’g denied, cert.

       denied, 552 U.S. 1314, 128 S. Ct. 1871 (2008). As mentioned above, the 2012

       DCS report, which contained an allegation that Hogan grabbed A.B. in the


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 25 of 30
       groin and breast area, indicated that A.B. denied the allegation. The record

       contained cumulative evidence including A.B.’s testimony that there were

       allegations against Hogan in 2012 and that she initially denied everything.

       Further, the record reveals Hogan’s trial counsel was aware of the DCS

       investigation into Hogan. We again cannot say reversal is warranted on this

       basis.


       C.       C.H.’s Testimony


[19]   Hogan argues that his trial counsel was ineffective for failing to subpoena C.H.

       or present her taped statement. He notes that C.H. stated in her telephonic

       deposition that she claimed she would sleep on the floor while A.B. and Hogan

       were in the bed and this contradicted her taped statement in which she stated

       that A.B. did sometimes sleep in the bed with Hogan but she, C.H., would

       always sleep in the middle. He contends, “[h]ad C.H. been called to testify at

       trial, she could have clarified this inconsistency and repeated the exculpatory

       evidence contained in both statements.” Appellant’s Brief at 20.


[20]   Generally, deciding which witnesses to call is the “epitome of a strategic

       decision,” Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001), cert. denied, 535

       U.S. 1019, 122 S. Ct. 1610 (2002), and such decisions are insufficient to

       establish ineffective representation. See Kelly v. State, 452 N.E.2d 907, 910 (Ind.

       1983). “When ineffective assistance of counsel is alleged and premised on the

       attorney’s failure to present witnesses, it is incumbent upon the petitioner to

       offer evidence as to who the witnesses were and what their testimony would


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 26 of 30
       have been.” Lee v. State, 694 N.E.2d 719, 722 (Ind. 1998) (quoting Lowery v.

       State, 640 N.E.2d 1031, 1047 (Ind. 1994) (citing Wallace v. State, 553 N.E.2d 456

       (Ind. 1990), cert. denied, 500 U.S. 948, 111 S. Ct. 2250 (1991)), cert. denied, 516

       U.S. 992, 116 S. Ct. 525 (1995)), cert. denied, 525 U.S. 1023, 119 S. Ct. 554

       (1998).


[21]   At trial, A.B. testified that she would sleep in Hogan’s bed when she spent the

       night at his residence and C.H. would sometimes sleep in his bed and

       sometimes she would sleep in her room when Hogan kicked her out of the

       room. S.P. testified that she was A.B.’s friend, she spent thirty or forty nights at

       Hogan’s residence, and she slept with A.B. and Hogan in his bed. B.S. testified

       that she was A.B.’s friend, she spent the night at Hogan’s residence with A.B.,

       she slept on the couch, in a bed next to Hogan’s room, or in the bed, sometimes

       A.B. would sleep with her, and sometimes she would wake up and A.B. would

       be gone.


[22]   While Hogan’s trial counsel indicated a belief that C.H. would have been a

       witness favorable to Hogan, when asked to explain, he answered: “She may

       have attested that the allegations that A.B. made never occurred. But at the

       same time she was never notified of those, what I’ll call contacts, or allegations,

       so when asked point blank in her deposition, she simply responded as I read

       down the list of allegations that that’s how she responded.” Post-Conviction

       Transcript Volume II at 42. When asked if he remembered whether there was

       any effort to subpoena C.H. for trial, he answered that he did not recall.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 27 of 30
[23]   We observe that Hogan did not present C.H.’s testimony at the post-conviction

       hearing. 2 We cannot say that Hogan’s assertion that C.H. could have clarified

       the inconsistency between her telephonic deposition and her recorded statement

       demonstrates prejudice. During the taped interview, C.H. stated A.B. visited

       her, A.B. had her own room but slept on the couch a lot, A.B. sometimes slept

       in Hogan’s room, and they slept on the floor or on the bed when they slept in

       Hogan’s room. When asked if there were ever times when A.B. slept in

       Hogan’s room without her, she answered in the negative. She indicated there

       were times when A.B. slept in the bed with Hogan but she, C.H., would get in

       the middle. We cannot say the evidence as a whole unerringly and

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

       court.


       D.       Custody Battle


[24]   With respect to trial counsel’s failure to investigate, Hogan asserts that the

       circumstances included his involvement in a bitter custody battle with Mother

       over C.H., the custody battle also involved A.B.’s biological father, and both

       men employed Attorney Tourkow who successfully fought for Hogan and

       A.B.’s biological father to have custody of their respective daughters. He argues




       2
        At the hearing, Hogan’s counsel asserted that C.H. was currently residing in Florida “so we can’t even get a
       subpoena because we’re not a party to the Uniform Interstate Depositions and Discovery Act, so even if we
       asked the Court to issue a subpoena it wouldn’t do any good because we wouldn’t be able to enforce it.”
       Post-Conviction Transcript Volume II at 75. On appeal, Hogan does not develop an argument under the
       Uniform Interstate Depositions and Discovery Act.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020               Page 28 of 30
       that A.B.’s father stated to DCS in 2012 that Hogan had always been a great

       caregiver to A.B. and A.B.’s father told DCS that he believed somebody made

       up the false allegations because they were mad that he obtained full custody of

       A.B.


[25]   At trial, A.B.’s father testified that he had been friends with Hogan, he helped

       Hogan obtain a job, and he allowed A.B. to spend time with Hogan and C.H.

       because he “thought he always would take care of her and be there for her.”

       Trial Transcript Volume II at 456. On cross-examination, A.B.’s father testified

       that he knew Hogan for thirteen years before the allegations and felt safe and

       secure during that period and trusted Hogan with A.B. Further, A.B. referred

       to the “custody battle” at trial. Trial Transcript Volume I at 166.


[26]   During the post-conviction hearing, Hogan’s post-conviction counsel

       mentioned the custody battle during direct examination of Hogan’s trial

       counsel. When asked if the State opens the door to be able to make arguments

       when a State’s witness brings up a custody battle, Hogan’s trial counsel stated:

       “Can, and sometimes when you make those arguments, it blows up in your

       face.” Post-Conviction Transcript Volume II at 54. In light of the custody

       battle referenced at trial, the testimony of A.B.’s father, and the testimony of

       Hogan’s trial counsel regarding the decision not to further discuss the custody

       battle, we cannot say that the evidence as a whole unerringly and unmistakably

       leads to a conclusion opposite that reached by the post-conviction court.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 29 of 30
[27]   For the foregoing reasons, we affirm the denial of Hogan’s petition for post-

       conviction relief.


[28]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1057 | January 28, 2020   Page 30 of 30
