MEMORANDUM DECISION
                                                                  Jun 11 2015, 9:18 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

Tracy A. Nelson                                           Angela N. Sanchez
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Gary Wilson,                                              June 11, 2015

Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          79A02-1410-PC-694
        v.                                                Appeal from the Tippecanoe Circuit
                                                          Court
                                                          Cause No. 79C01-1004-PC-2
State of Indiana,
Appellee-Respondent.                                      The Honorable Donald Daniel,
                                                          Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015      Page 1 of 12
                                             Case Summary
[1]   Gary Wilson appeals the denial of his petition for post-conviction relief, which

      challenged two of his convictions for Class B felony sexual misconduct with a

      minor. We affirm.


                                                     Issue
[2]   The sole issue before us is whether Wilson received ineffective assistance of trial

      counsel.


                                                     Facts
[3]   On July 6, 2005, fourteen-year-old D.W. told her mother that Wilson, her

      father, had been committing sexual acts with her. Specifically, D.W. later

      testified during trial that Wilson had started fondling her breasts and vagina

      about one year before she told her mother. The fondling progressed from

      initially being over her clothes to under them. D.W. further testified that, on

      the morning of July 6, 2005, Wilson kissed her legs and rubbed her breasts, and

      he then pulled aside her shorts and kissed her vagina. D.W. also testified that a

      few days before this incident, Wilson had kissed her legs and rubbed her breasts

      but had not kissed her vagina; she also stated that no other incidents similar to

      these had ever occurred.


[4]   After D.W. reported Wilson’s conduct to her mother, her mother contacted

      police, and Wilson agreed to a videotaped interview at the police station.

      During the interview, Wilson admitted that he had briefly performed oral sex

      on D.W. on the morning of July 6, 2005, after first kissing her legs. Wilson also
      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 2 of 12
      stated that he had performed similar acts on D.W., each lasting less than a

      minute, on two other occasions in the week and a half prior to July 6. Wilson

      denied ever fondling D.W.’s vagina and also stated that he had fondled her

      breasts once, about two weeks earlier.


[5]   Later, Wilson wrote several letters to his wife and son. Several of the letters

      contained general apologies without going into details of what had occurred

      with D.W. In the final letter to his wife, Wilson provided more details of what

      had occurred and his thought processes:

                 I was ashamed to admit I had a problem with my own lust. “Pride”
                 kept me from asking for help or addressing the issue. . . . In my
                 confusion of mind and my fear of all the time she was spending with
                 boys I was afraid she would end up pregnant . . . so in some sick way I
                 thought I’d show her another way to experience pleasure and maybe
                 she wouldn’t let boys jump on her the other way. . . . If [D.W.]’ll
                 admit that she tried to hide the truth by saying I came to her room and
                 fondled her breast “which never happened once” I was at work I’ll
                 prove that. I only admitted to putting my face in her private area once
                 and pressing in with my nose and mouth, that she wasn’t unclothed
                 and it was only a couple of seconds. The other 2 times I just admitted
                 to kissing her legs and moving up slightly. Which was normal for as
                 you know I always kissed them both all over and it was never
                 perverted, but that last time the Medication, my state of trauma (you
                 know my mind was broke. Jekll & Hide [sic]“) Lust and perversion”
                 Immorality did get me.
      Ex. 12, 13.1 Wilson also stated to his wife:

                 Get rid of these more serious charges. I can beat her at a jury if you
                 don’t talk or agree on the extent of the seriousness of these incidents



      1
          Exhibit 12 was the original handwritten letter, while Exhibit 13 was a photocopy of the letter.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015                   Page 3 of 12
              that it had just happened it hadn’t been going on for some time and
              hadn’t escalated to any penetration or sexually deviant crime.
      Id.


[6]   The State filed a thirteen-count information against Wilson, charging him with

      four counts of Class B felony incest, four counts of Class B felony sexual

      misconduct with a minor, and five counts of Class C felony sexual misconduct

      with a minor. At Wilson’s jury trial, the State introduced without objection his

      videotaped police interview. Additionally, the State introduced without

      objection the letters Wilson had written to his wife and son. The jury found

      Wilson guilty of three counts of incest, three counts of Class B felony sexual

      misconduct with a minor, and two counts of Class C felony sexual misconduct

      with a minor. The trial court merged the incest convictions with the three Class

      B felony sexual misconduct with a minor convictions. These convictions were

      related to Wilson having performed oral sex on D.W. The trial court sentenced

      Wilson to a total term of sixty years. On direct appeal, we rejected Wilson’s

      claim of a violation of Indiana Trial Rule 4(C) and found that his sentence was

      not inappropriate. Wilson v. State, No. 79A05-0807-CR-429 (Ind. Ct. App. May

      4, 2009), trans. denied.


[7]   Wilson subsequently filed a PCR petition, alleging that he had received

      ineffective assistance of trial counsel. Specifically, Wilson asserted that trial

      counsel should have objected to introduction of his videotaped statement and

      his letters to his wife and son because there was insufficient corpus delicti

      evidence, independent of his confession, that he committed three acts of Class B


      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 4 of 12
      felony sexual misconduct with a minor via oral sex as opposed to just one act,

      as testified to by D.W. at trial. Wilson did not attempt to present any evidence

      from his trial attorney, by testimony or affidavit. On this claim, Wilson only

      sought to set aside two of his Class B felony sexual misconduct with a minor

      convictions. The post-conviction court rejected Wilson’s argument and denied

      his PCR petition.2 In part, the post-conviction court held that Wilson’s letters

      to his wife and son helped provide corroborating evidence for D.W.’s testimony

      that provided a sufficient corpus delicti to allow admission of his videotaped

      statement. However, the post-conviction court failed to address Wilson’s

      contention that the letters themselves could not provide corroborating evidence

      of D.W.’s testimony because they also were out-of-court admissions, just like

      the videotaped statement. Wilson now appeals.


                                                     Analysis
[8]   A post-conviction relief petitioner bears the burden of establishing grounds for

      relief by a preponderance of the evidence. Passwater v. State, 989 N.E.2d 766,

      770 (Ind. 2013) (citing Ind. Post–Conviction Rule 1(5)). A petitioner appealing

      the denial of post-conviction relief is appealing from a negative judgment. Id.

      “To prevail from the denial of post-conviction relief, a petitioner must show

      that the evidence as a whole leads unerringly and unmistakably to a conclusion




      2
        Wilson also argued that appellate counsel was ineffective for not arguing that his crimes were subject to
      consecutive sentencing limitations. The post-conviction court also rejected this claim, and Wilson does not
      raise it on appeal.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015              Page 5 of 12
      opposite that reached by the post-conviction court.” Id. Additionally, Indiana

      Post–Conviction Rule 1(6) requires a post-conviction court to enter findings of

      fact and conclusions of law. We do not defer to any legal conclusions made by

      the post-conviction court, but we will reverse its findings and judgment only

      when there has been clear error—“‘that which leaves us with a definite and firm

      conviction that a mistake has been made.’” Id. (quoting Ben–Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000), cert. denied).


[9]   A petitioner claiming to have received ineffective assistance of trial counsel in

      violation of the Sixth Amendment must establish the two components set forth

      in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Id. First, a

      petitioner must show that counsel’s performance was deficient. Id. “This

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

      standard of reasonableness and that counsel made errors so serious that counsel

      was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth

      Amendment.” Id. Second, a petitioner must show that the deficient

      performance prejudiced the defense. Id. This requires a showing that counsel's

      errors were so serious as to deprive the petitioner of a fair trial, meaning a trial

      whose result is reliable. Id. In order to establish prejudice, it must be shown

      that, but for counsel’s unprofessional errors, the result of the proceeding would

      have been different. Id. “A reasonable probability is one that is sufficient to

      undermine confidence in the outcome.” Id. “We afford counsel considerable

      discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor

      strategy, inexperience, and instances of bad judgment do not necessarily render

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 6 of 12
       representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012)

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

       claim of ineffective assistance is based upon a failure to object to evidence, “a

       defendant must prove that an objection would have been sustained, that the

       failure to object was unreasonable, and that he was prejudiced.” Potter v. State,

       684 N.E.2d 1127, 1134 (Ind. 1997).


[10]   Our supreme court has discussed Indiana’s corpus delicti rule as follows:

               In Indiana, a crime may not be proven based solely on a confession,
               and admission of a confession requires some independent evidence of
               the crime including evidence of the specific kind of injury and evidence
               that the injury was caused by criminal conduct. However, this
               evidence need not prove that a crime was committed beyond a
               reasonable doubt, but merely “provide an inference that a crime was
               committed.” Finally, this inference of a crime may be established by
               circumstantial evidence.
       Workman v. State, 716 N.E.2d 445, 447-48 (Ind. 1999) (citations omitted). In

       1990, our supreme court considered arguments for rejecting the corpus delicti

       rule but ultimately declined to do so:

               The corpus delicti rule arose from judicial hesitancy to accept without
               adequate corroboration a defendant's out-of-court confession of
               criminal activity. The primary function of the rule is to reduce the risk
               of convicting a defendant based on his confession for a crime that did
               not occur. Other justifications include the reduction of confessions
               produced by coercive tactics and the encouragement of thorough
               police investigations. The extent to which the rule actually furthers
               these goals has been seriously questioned, especially in light of
               developing procedural safeguards for voluntary confessions.
       Willoughby v. State, 552 N.E.2d 462, 466 (Ind. 1990) (citations omitted).

       Ultimately, the court in Willoughby held:

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 7 of 12
               We are persuaded that where a defendant confesses to several crimes
               of varying severity within a single criminal episode, strict and separate
               application of the corpus delicti rule to each offense adds little to the
               ultimate reliability of the confession once independent evidence of the
               principal crimes is introduced. The confession at that point has been
               substantially corroborated. In such a case the confession stands as
               direct evidence of each crime, even those not separately corroborated,
               if the independent evidence establishes the corpus delicti of the
               principal crime or crimes.
       Id. at 467.


[11]   In Workman, the court further elaborated on what the phrase “single criminal

       episode” means within the context of the corpus delicti rule. It looked to

       decisions from this court defining “criminal episode” in the context of statutory

       consecutive sentencing limitations. Workman, 716 N.E.2d at 448. Specifically,

       the court stated, “‘[E]pisode means an occurrence or connected series of

       occurrences and developments which may be viewed as distinctive and apart

       although part of a larger or more comprehensive series.’” Id. (quoting Tedlock v.

       State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995)). “Indiana Code § 35-50-1-2(b)

       defines an episode of criminal conduct as ‘a connected series of offenses that are

       closely related in time, place, and circumstance.’” Id. In Workman, the court

       held that the defendant’s abuse of his wife’s corpse several hours after he had

       murdered her was part of the same “criminal episode” as the murder for which

       there was ample independent evidence, and so the defendant’s confession for

       also abusing the corpse was admissible. Id.


[12]   Here, the post-conviction court specifically found that three different acts of oral

       sex upon D.W. by Wilson on three separate days would not have constituted a


       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 8 of 12
       “single criminal episode.” Regardless, it found that there was sufficient

       corroborative evidence of three different such acts, despite D.W.’s testimony

       that there was only one act. In large part, however, the post-conviction court

       relied upon the letters from Wilson to his wife and son, especially the last letter

       he wrote. Wilson specifically challenged the admission of these letters on

       corpus delicti grounds as well, but the post-conviction court did not address that

       challenge.


[13]   It is unclear whether the corpus delicti rule is intended to apply to any out-of-

       court statements made by a defendant, as opposed to only statements made

       during police interrogations. Wilson has not cited any cases where the rule was

       applied to statements made outside of a police interrogation. And, one of the

       central purposes of the rule is reduce “confessions produced by coercive tactics

       and the encouragement of thorough police investigations.” Willoughby, 552

       N.E.2d at 466. That purpose does not apply to voluntary statements made by a

       defendant to third parties who are not law enforcement officers. On the other

       hand, the rule has not been explicitly limited only to police interrogation

       “confessions” and has been said to apply to “admissions” as well. See, e.g.,

       Green v. State, 159 Ind. App. 68, 79, 304 N.E.2d 845, 851-52 (1973) (referring to

       corpus delicti rule and application to “an admission or confession”). “‘An

       admission differs from a confession in that a confession acknowledges all of the

       essential elements of the crime.’” Flanders v. State, 609 S.E.2d 346, 350 (Ga.

       2005) (quoting Walsh v. State, 499 S.E.2d 332, 335 (Ga. 1998)). We conclude

       that, given the lack of a definitive holding that admissions by a defendant to


       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 9 of 12
       another person outside the context of a police interview are covered by the

       corpus delicti rule, we cannot say trial counsel was ineffective for not objecting

       to introduction of Wilson’s letters as violating that rule.


[14]   In any event, even if both the letters and Wilson’s videotaped statement were

       covered by the corpus delicti rule, we believe trial counsel was not ineffective

       for failing to object to either the letters or the videotaped statement. D.W.

       testified that Wilson molested her over the course of about a year. She

       described the acts as progressing from fondling her breasts and vagina over her

       clothes, to fondling under her clothes, to kissing her legs but not her vagina, and

       finally to an instance where Wilson briefly performed oral sex on her. Even

       though D.W. only recalled one instance of oral sex, she described a pattern of

       escalating molestation over the course of a year culminating in oral sex. Thus,

       there is evidence of D.W. being subjected to repeated sexual acts by Wilson.

       Even if her testimony did not establish all the elements for three counts of Class

       B felony sexual misconduct with a minor, it did not have to do so in order for

       Wilson’s extrajudicial statements to be admissible. Wilson’s videotaped

       statement and letters also describe several sexual acts and, although Wilson’s

       statements are not perfectly consistent with D.W.’s testimony, there is

       significant overlap. In other words, D.W.’s testimony sufficiently corroborates

       Wilson’s out-of-court statements.


[15]   Wilson nonetheless contends that, because the other two alleged acts of oral sex

       with D.W. as related in his videotaped statement occurred on other days than

       the act to which D.W. testified, they cannot be considered part of the same

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 10 of 12
       “criminal episode” and so Wilson’s confession to those other two acts are

       inadmissible, per the holding in Workman. We agree that, in strictly applying

       the sentencing definition of a “single criminal episode,” the three alleged acts of

       oral sex did not constitute such an episode, as found by the post-conviction

       court and essentially conceded by the State on appeal. See Smith v. State, 770

       N.E.2d 290, 294 (Ind. 2002) (holding defendant’s six cashing of checks stolen

       from two victims at different times and at different locations were not a single

       episode of criminal conduct because “they were not ‘simultaneous’ and

       ‘contemporaneous’ with one another”) (quoting Tedlock, 656 N.E.2d at 276).

       However, it is not perfectly clear that Workman was intended to create a bright-

       line rule whereby a series of crimes falling outside the sentencing definition of

       “single criminal episode” was governed by the corpus delicti rule while only

       those series of crimes falling within it were exempt from the rule. Rather, we

       believe Willoughby and Workman can be read together as indicating that

       flexibility should be applied in considering whether the corpus delicti rule has

       been satisfied so as to allow admission of a defendant’s extrajudicial admissions

       and confessions. Workman looked to the sentencing definition of “single

       criminal episode” for guidance, but it did not state that such definition was

       binding in all cases in which a corpus delicti issue is raised.


[16]   Especially within the context of an ineffective assistance of counsel claim, it

       would have been within the broad realm of judgment entrusted to an attorney

       to conclude that the corpus delicti rule would not prohibit introduction of




       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015   Page 11 of 12
       Wilson’s videotaped statement and letters.3 It appears that the purposes of the

       corpus delicti rule were satisfied by D.W.’s testimony: to establish by evidence

       independent of Wilson’s out-of-court statements that multiple sex crimes

       against her had in fact occurred, and that those statements were not the result of

       coercion. As such, we cannot say it was unreasonable for trial counsel not to

       object to introduction of Wilson’s videotaped statement and letters. Wilson did

       not meet his burden of establishing that he received ineffective assistance of trial

       counsel.


                                                     Conclusion
[17]   The post-conviction court did not clearly err in concluding that Wilson did not

       receive ineffective assistance of trial counsel. We affirm the denial of Wilson’s

       PCR petition.


[18]   Affirmed.


       Riley, J., and Bailey, J., concur.




       3
        Wilson failed to obtain either trial counsel’s presence at the post-conviction hearing or an affidavit from
       counsel, and so we know nothing of his thought processes with respect to this issue.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015               Page 12 of 12
