                                                        Dec 08 2014, 9:28 am



FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                GREGORY F. ZOELLER
Public Defender of Indiana                      Attorney General of Indiana

C. BRENT MARTIN                                 J.T. WHITEHEAD
Deputy Public Defender                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

BRIAN S. ADCOCK,                                )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )    No. 47A01-1407-PC-283
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE LAWRENCE SUPERIOR COURT
                         The Honorable Michael A. Robbins, Judge
                              Cause No. 47D01-1305-PC-672


                                     December 8, 2014

                               OPINION - FOR PUBLICATION


BARNES, Judge
                                             Case Summary

          Brian Adcock appeals the post-conviction court’s denial of his petition for post-

conviction relief (“PCR petition”), which challenged his convictions for two counts of

Class A felony child molesting and two counts of Class B felony sexual misconduct with

a minor. We reverse and remand.

                                                   Issue

          The combined and restated issue before us is whether Adcock’s appellate counsel

was ineffective for failing to challenge the sufficiency of the evidence against him on direct

appeal.1

                                                   Facts

          L.P. was born on September 21, 1988. Adcock lived in Bedford with L.P. and her

mother, and he married L.P.’s mother when L.P. was twelve. Beginning when L.P. was in

third grade, Adcock would come into L.P.’s bedroom at night about once a week and fondle

her breasts and try to touch her vagina. Most of these touchings occurred over L.P.’s

clothes, although Adcock would sometimes try to reach underneath her clothes.

          L.P. began junior high school in the fall of 2001. L.P.’s junior high school included

seventh and eighth grades. L.P. turned fourteen in September 2002, at the beginning of her

eighth grade year. Sometime during her seventh grade year, Adcock began frequently

giving her back rubs, and these would escalate into Adcock fondling L.P.’s breasts and

touching her vagina. L.P. would later testify that Adcock usually “rubbed around” her



1
    We need not address Adcock’s claim regarding ineffectiveness of trial counsel.
                                                      2
vagina with his fingers, but that “once or twice,” he put his finger into her vagina. Tr. p.

453. L.P. also said, “He didn’t do that that much.” Id. L.P. was unsure what grade she

was in when Adcock digitally penetrated her vagina.

           Sometime during L.P.’s freshman year of high school, which would have been in

2003-04, Adcock began frequently rubbing his penis against L.P.’s vagina.                            L.P.

specifically would later testify that Adcock “[j]ust rubbed against mine” and that he did

not do anything else with his penis. Id. at 448.

           L.P. told a friend about Adcock’s conduct while she was in junior high school, but

it was not reported to police at that time. In 2006, L.P. told a boyfriend about Adcock’s

conduct, and it was finally investigated by police in January 2008. On May 21, 2008, the

State charged Adcock with a number of offenses related to L.P.2 After several amendments

and motions to dismiss, Adcock faced trial on three counts of Class A felony child

molesting and three counts of Class B felony sexual misconduct with a minor, all of which

alleged that Adcock engaged in “deviate sexual conduct” with L.P. App. pp. 65-66. The

three child molesting counts were alleged to have occurred between August 2001 and

August 2002, when L.P. was twelve or thirteen. The first count, Count 1 of the information,

alleged that Adcock “plac[ed] his finger in her vagina”; Count 2 alleged that Adcock

“plac[ed] his mouth on her vagina”; and Count 3 alleged that Adcock “plac[ed] his penis

against her vagina.” Id. The three sexual misconduct counts—Counts 4 through 6—were

alleged to have occurred between May 21, 2003 and September 20, 2004 when L.P. was



2
    There also were some charges related to friends of L.P., but they are irrelevant to this case.
                                                        3
between fourteen and less than sixteen years old. The language of these counts was

identical to Counts 1-3 with respect to the sex acts Adcock was alleged to have committed.

       During Adcock’s jury trial in September 2009, he successfully moved for a directed

verdict on Counts 2 and 5 of the information because there was no evidence that Adcock

had ever performed oral sex on L.P. The jury returned guilty verdicts on Counts 1, 3, 4,

and 6. Adcock also was found to be a repeat sexual offender (“RSO”) and sentenced

accordingly.

       On direct appeal, Adcock’s attorney argued that the prosecutor committed

misconduct during voir dire, that the trial court improperly allowed the State to make an

amendment related to notice of the RSO, and that double jeopardy precluded his multiple

convictions for both child molesting and sexual misconduct with a minor. We rejected all

of Adcock’s arguments and affirmed. Adcock v. State, 933 N.E.2d 21 (Ind. Ct. App. 2010).

In addressing Adcock’s double jeopardy claim, we specifically noted, “Adcock does not

challenge the sufficiency of the evidence.” Id. at 31 n.8. Our supreme court denied

transfer.

       Adcock subsequently filed a pro se PCR petition, which later was amended by

counsel. Adcock contended that he received ineffective assistance of trial counsel for not

having moved for directed verdicts on all counts and that he received ineffective assistance

of appellate counsel for not challenging the sufficiency of the evidence on all counts.

Adcock submitted affidavits from his trial and appellate attorneys that they had not

considered moving for directed verdicts or challenging the sufficiency of the evidence on

appeal, but that they believed there was in fact insufficient evidence on all the convictions.
                                              4
Adcock moved for summary disposition of his PCR petition. The State afterward also

moved for summary disposition. The PCR court granted the State’s motion for summary

disposition and rejected all of Adcock’s claims, without entering any findings or

conclusions. Adcock now appeals.

                                                 Analysis

          The PCR court resolved this case by summary disposition on the State’s motion,

pursuant to Indiana Post-Conviction Rule 1(4)(g).3 That rule provides:

                  The court may grant a motion by either party for summary
                  disposition of the petition when it appears from the pleadings,
                  depositions, answers to interrogatories, admissions,
                  stipulations of fact, and any affidavits submitted, that there is
                  no genuine issue of material fact and the moving party is
                  entitled to judgment as a matter of law. The court may ask for
                  oral argument on the legal issue raised. If an issue of material
                  fact is raised, then the court shall hold an evidentiary hearing
                  as soon as reasonably possible.

Ind. Post-Conviction Rule 1(4)(g). We review a trial court’s ruling on summary disposition

as we would a ruling on summary judgment under Indiana Trial Rule 56. Allen v. State,

791 N.E.2d 748, 753 (Ind. Ct. App. 2003), trans. denied. Summary disposition should not

be granted unless there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Id. Any doubts about the facts and inferences to be drawn

from them must be resolved in favor of the non-movant. Id. The granting of a motion for

summary disposition is a matter for appellate de novo determination when there are no

disputed facts and the determinative issue is a question of law. Norris v. State, 896 N.E.2d



3
    The State did not seek summary disposition under Indiana Post-Conviction Rule 1(4)(f).
                                                     5
1149, 1151 (Ind. 2008).     The PCR court also failed to enter any findings to accompany

its order. Adcock contends the PCR court erroneously granted the State’s motion for

summary disposition and should have granted summary disposition in his favor instead

pursuant to his own motion. Adcock does not request that we remand this case for an

evidentiary hearing or for the PCR court to enter findings. The State, having moved for

summary disposition, argues at the outset that the PCR court should have entered findings

and asks us to remand for such findings to be entered, but alternatively argues on the merits

that summary disposition was properly granted.

       Regarding the State’s remand request, it is true that Indiana Post-Conviction Rule

1(6) requires a PCR court to “make specific findings of fact, and conclusions of law on all

issues presented, whether or not a hearing is held.” This would seem to require PCR courts

to enter findings and conclusions, even if it grants a motion for summary disposition. But

see State v. Daniels, 680 N.E.2d 829, 831-32 (Ind. 1997) (comparing Indiana Post-

Conviction Rule 1(4)(g) with Indiana Trial Rule 56 and stating, “[s]pecific findings and

conclusions are neither required nor prohibited in the summary judgment context.”).

However, a PCR court’s failure to enter specific findings of fact and conclusions of law in

ruling on a PCR petition is not reversible error when the issues are sufficiently presented

for review and addressed by the parties. Jackson v. State, 676 N.E.2d 745, 750 (Ind. Ct.

App. 1997), trans. denied. If the facts underlying a claim are not in dispute, the issues are

sufficiently clear, and both parties address the merits in their briefs, remand for specific

findings by the PCR court is not necessary. Id. (citing Lowe v. State, 455 N.E.2d 1126,

1128 (Ind. 1983)).
                                             6
        We also note that whether a defendant received effective assistance of counsel

during trial and appeal often is characterized as a factual, not legal, question. See Evolga

v. State, 722 N.E.2d 370, 373 (Ind. Ct. App. 2000). A defendant claiming ineffective

assistance of appellate counsel must show counsel was deficient in his or her performance

and that the deficiency resulted in prejudice. Garrett v. State, 992 N.E.2d 710, 719 (Ind.

2013). To satisfy the first prong, the defendant must show that counsel’s representation

fell below an objective standard of reasonableness, committing errors so serious that the

defendant did not have the “counsel” guaranteed by the Sixth Amendment. Id. “Isolated

mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily

render representation ineffective.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001),

cert. denied. In other words, to demonstrate deficient performance by appellate counsel,

“‘a defendant must show from the information available in the trial record or otherwise

known to appellate counsel that appellate counsel failed to present a significant and obvious

issue and that this failure cannot be explained by any reasonable strategy.’” Id. at 606

(quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind. 2000), cert. denied).4 If a

defendant establishes deficient performance by appellate counsel, he or she must then show

prejudice, meaning a reasonable probability that, but for counsel’s errors, the result of the

direct appeal would have been different. Reed v. State, 856 N.E.2d 1189, 1201 (Ind. 2006).




4
  Adcock’s argument focuses solely on whether appellate counsel failed to raise an issue on direct appeal
regarding the sufficiency of the evidence. Appellate counsel also may be ineffective for forfeiting a
defendant’s appeal altogether, or failing to present issues well. Garrett, 992 N.E.2d at 724.
                                                   7
        Here, in addition to the direct appeal transcript, Adcock submitted an undisputed

affidavit from his appellate attorney that he never considered raising a sufficiency of the

evidence challenge to any of Adcock’s convictions, but stating that there was in fact

insufficient evidence to support any of the convictions. This affidavit fails to disclose any

strategic or tactical reason for not challenging the sufficiency of the evidence on direct

appeal, as might have excused counsel’s failure to raise that issue, and instead plainly

establishes that it was simply a matter of oversight. We do not believe there are any factual

issues surrounding appellate counsel’s performance that need to be resolved. Instead, the

questions before us are purely legal: what were the legal merits of a sufficiency challenge

to Adcock’s convictions as compared to the issues actually raised, and would such a

challenge likely have led to a different result on direct appeal?5 We are in as good a position

as the PCR court to answer such questions. Adcock’s claims ultimately turn upon the

likelihood of success he would have had before this court on direct appeal if he had argued

insufficiency of the evidence.           Also, both parties moved for summary disposition,

indicating that both parties believed the issues were purely legal, not factual. Given the

purely legal questions before us, and both parties having addressed the merits of those




5
 The State erroneously characterizes the issue of whether there was sufficient evidence to support Adcock’s
convictions as a factual issue. Deciding a question of fact requires a court to weigh evidence and consider
witness credibility, which we will not do when reviewing whether there is sufficient evidence to support a
conviction. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009). Rather, we will reverse a conviction as being
unsupported by the evidence when, after considering only the evidence most favorable to the conviction,
there is insufficient evidence as a matter of law on an element of a crime. Id. at 946; see also Abdullah v.
State, 847 N.E.2d 1031, 1035 (Ind. Ct. App. 2006).

                                                     8
questions, we proceed to rule upon them without remanding to the PCR court to enter

findings and conclusions.

        We first address Adcock’s conviction under Count 1, which alleged that Adcock

committed Class A felony child molesting by placing his finger inside L.P.’s vagina

between August 2001 and August 2002. In order to convict Adcock of this offense as

charged under the statute in effect at the time of the alleged offense and trial, the State was

required to prove that he performed deviate sexual conduct with L.V. when she was under

fourteen years of age and he was over twenty-one years of age. I.C. § 35-42-4-3(a) (2002).

“Deviate sexual conduct” was defined as “an act involving: (1) a sex organ of one person

and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of

a person by an object.” I.C. § 35-41-1-9 (2002).6 Adcock does not deny that L.P. testified

to his digitally penetrating her vagina “once or twice” while she was in junior high school,

which she attended between August 2001 and May 2003. Tr. p. 453.7 Such conduct would

have constituted deviate sexual conduct under the child molesting statute in effect at the

time of the offenses and Adcock’s trial. See Harwood v. State, 555 N.E.2d 513, 515 (Ind.

Ct. App. 1990).


6
 The legislature has now replaced the phrase “deviate sexual conduct” with “other sexual conduct.” I.C. §
35-31.5-2-221.5 (2014).
7
  In its brief, the State argues that L.P. testified that “each touch to the vagina involved what L.P. described
as either ‘massage,’ or insertion, or ‘rubbing around,’ on a regular (once or twice a week) basis . . . .”
Appellee’s Br. p. 17. This description of the evidence arguably blurs the line between child molestation by
fondling, of which Adcock was not charged, and child molestation by deviate or other sexual conduct. The
statutory provisions for these offenses are separate and distinct, and molestation by fondling is not a lesser-
included offense of molestation by intercourse or deviate or other sexual conduct. See Downey v. State,
726 N.E.2d 794, 798-99 (Ind. Ct. App. 2000), trans. denied. Legally, digital penetration is not equivalent
to “massage” or “rubbing around.” L.P. unequivocally testified that, although Adcock frequently touched
her vagina, he only inserted his finger “once or twice.” Tr. p. 453.
                                                       9
       However, Adcock notes that when directly asked, L.P. could not remember when

the digital penetrations occurred or what grade she was in at the time—only that they had

occurred sometime during junior high school. This is highly relevant, because L.P. turned

fourteen on September 21, 2002, at the beginning of her eighth grade year. Once L.P.

turned fourteen, Adcock’s act of digitally penetrating her vagina would have constituted

Class B felony sexual misconduct with a minor, not Class A felony child molesting. See

I.C. § 35-42-4-9(a) (2002). There is longstanding caselaw holding that, although time is

not of essence in most child molesting cases, the exact date of an act becomes important if

“the victim’s age at the time of the offense falls at or near the dividing line between classes

of felonies.” Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992); see also Love v. State,

761 N.E.2d 806, 809 (Ind. 2002). If it is difficult to tell whether a molestation victim was

above or below such a dividing line at the time of the offense, then the State may charge

and convict the defendant of the lesser felony. Barger, 587 N.E.2d at 1307-08. If it is

impossible to tell whether the victim was above or below the minimum age of consent at

the time of an act, a defendant cannot be convicted of any crime. Id. at 1308 n.3.

       This was a case where the exact date or dates of Adcock’s alleged conduct was

important because of the dividing line between child molesting and the less serious crime

of sexual misconduct with a minor. Here, L.P. could only testify that Adcock had inserted

his finger into her vagina sometime while she was in junior high school; she was thirteen

for about one-half of that time and fourteen for the other half. There is a lack of proof as

to L.P.’s age when the conduct occurred. Such deficiency in L.P.’s testimony is clear and

obvious on the face of the record, and Barger’s holding regarding the necessity of proving
                                            10
the exact date of an occurrence in cases such as this was well-settled at the time of Adcock’s

direct appeal. If such an argument had been made on direct appeal, we would have been

compelled to rule in Adcock’s favor and hold that there was insufficient evidence to convict

him of Class A felony child molesting.

       The next question is whether Adcock could have instead been convicted of Class B

felony sexual misconduct with a minor on Count 1. An identical question is whether there

was sufficient evidence to support Adcock’s conviction on Count 4 for Class B felony

sexual misconduct with a minor, which also was based on his alleged digital penetration of

L.P.’s vagina. Although Barger would permit such convictions, given that L.P. clearly was

under sixteen years of age when she was in junior high school, the statute of limitations for

Class B felonies comes into play here. When these charges were filed, the statute of

limitations for a Class B felony was five years. I.C. § 35-41-4-2(a)(1) (2008). The statute

contained, and still contains, an extended statute of limitations, up to a victim’s thirty-first

birthday, for certain sex offenses: vicarious sexual gratification, child solicitation, child

seduction, incest, and child molestation by sexual intercourse or deviate (or “other”) sexual

conduct under Indiana Code Section 35-42-4-3(a); there was and is no extended limitations

period for sexual misconduct with a minor, or for child molesting by fondling under Indiana

Code Section 35-42-4-3(b). See I.C. § 35-41-4-2(e) (2008); I.C. § 35-41-4-2(e) (2014).

Here, given that the State filed its information on May 21, 2008, any charges against

Adcock for sexual misconduct with a minor occurring before May 21, 2003, would have

been time-barred.


                                              11
       In King v. State, 560 N.E.2d 491 (Ind. 1990), the State alleged that the defendant

molested the victim sometime in the spring of 1981 and filed a charge, which had a five-

year statute of limitations, on March 19, 1986. The victim testified as to an ongoing series

of incidents beginning in 1979 that lasted four-and-a-half years. However, there was no

testimony from the victim or anyone else establishing “with any degree of certainty” when

the event that was alleged to have occurred in the spring of 1981 took place; namely,

whether it occurred before or after March 19, 1981. King, 560 N.E.2d at 493. The victim

remembered generally that the incident took place during the 1980-81 academic year but

could not remember specifically when the molestation occurred. A friend of the victim

had also recalled being told about the molestation, but not when it occurred. Our supreme

court reversed the defendant’s conviction because the State had failed to prove beyond a

reasonable doubt that the charged molestation occurred on or after March 19, 1981. Id.

       This case is highly similar to King. L.P. could remember that Adcock’s acts of

digital penetration occurred sometime during junior high school, but there is no testimony

that any such act occurred on or after May 21, 2003, which would have been at the very

end of L.P.’s eighth grade year. One of L.P.’s friends also testified about being told by

L.P. that Adcock was “touching” her, sometime when they were fourteen or fifteen, but

that L.P. was “general” in her description of what happened. Tr. p. 523. Thus, the friend

did not testify as to any time frame as to when Adcock might have digitally penetrated L.P.

In sum, it is obvious from the face of the record that the State failed to prove that Adcock’s

alleged acts of digitally penetrating L.P. occurred on or after May 21, 2003. The statutory

limitations period for sexual misconduct with a minor likewise was clear at the time of
                                          12
Adcock’s direct appeal, and King’s resolution of a statute of limitations question in favor

of the defendant on very similar facts was on the books as well. If a statute of limitations

argument had been made on direct appeal, we would have been compelled to rule that there

was insufficient evidence that the acts alleged in Counts 1 and 4 had occurred within the

required statute of limitations for Class B felony sexual misconduct with a minor.

        Next, we address Adcock’s convictions under Counts 3 and 6. Count 3 alleged

Adcock committed Class A felony child molesting via deviate sexual conduct “by placing

his penis against [L.P.’s] vagina,” while Count 6 alleged he committed Class B felony

sexual misconduct with a minor by engaging in precisely the same conduct. App. pp. 65-

66. The first problem with the conviction under Count 3 is that L.P. testified with perfect

clarity that the first time Adcock touched her vagina with his penis was when she was in

high school.8 L.P. would have been no younger than either fourteen or fifteen at the time,

above the maximum age to support a charge of child molesting; the act instead would have

been sexual misconduct with a minor.




8
  Again, the State’s description of the facts is misleading and over-generalized. It argues in part, “the
touches of L.P.’s vagina with Adcock’s penis are or were included, in L.P.’s testimony, as part of the ‘same’
kind of touches she experienced over a very long period of time.” Appellee’s Br. p. 19. That is an incorrect
reading of L.P.’s testimony. At the outset of her testimony, she gave a general overview of everything she
claimed Adcock had done to her over the years, beginning when she was in third grade and ongoing through
high school. Then, she provided more detailed testimony regarding what exactly Adcock did to her and
when. With respect to Adcock’s touching L.P.’s vagina with his penis, the prosecutor asked her, “When
would that have occurred? The touching your vagina with the penis. How old would you have been? What
grade?” Tr. p. 447. L.P. responded, “High school. . . . My freshman year maybe.” Id.
         Finally, we note the State argues, “L.P. stated that by private area she meant her ‘vagina’ and not
just the vulva or labia or clitoris.” Appellee’s Br. p. 18. This suggests that L.P. gave a detailed description
of her genitalia, but she did not. She simply referred to Adcock touching her “vagina,” without elaboration.
Tr. p. 427. We urge the State to be more cautious when relating facts in its briefs.
                                                     13
       There is an even more fundamental problem with Counts 3 and 6, however. To

begin with, the definition of deviate sexual conduct included any act involving one person’s

sex organ and the other person’s anus or mouth. I.C. § 35-41-1-9 (2002). It did not include

mere contact between two sex organs. The definition of deviate sexual conduct did include

any penetration of a person’s sex organ by an “object.” Id. Likewise, Class A felony child

molesting or Class B felony sexual misconduct with a minor could be proven by evidence

of sexual intercourse. Sexual intercourse is defined as “an act that includes any penetration

of the female sex organ by the male sex organ.” I.C. § 35-41-1-26 (2002); I.C. § 35-31.5-

2-302 (2014).

       Thus, the question here is whether there is any evidence that Adcock penetrated

L.P.’s sex organ with his penis. At trial, L.P. testified as follows:

                Q:     Okay. Now a moment ago you were talking in general
                terms and you said he also touched your vagina with his penis.
                Tell me about that.

                A:      I guess when he’d rub my back and stuff, he still wore
                that robe and he’d pull out his penis and rub on it with his penis.

                Q:    Where were you and where was he, how was this
                happening?

                A:     I laid in the floor and he’d get over the top of me.

                                            *****

                Q:      And I want to make sure we’re clear. His, I want you
                to tell me what his penis, what part of your body his penis
                touched.

                A:     My private area, my vagina.


                                                14
              Q:     Okay. And when he did that what specifically did he
              do?

              A:     Just rubbed against mine.

              Q:     Did he do anything else with his penis?

              A:     No.

Tr. pp. 446-448.

       The State relies exclusively upon Short v. State, 564 N.E.2d 553 (Ind. Ct. App.

1991), in arguing that the above testimony was sufficient evidence of penetration. In that

case, we held that “penetration” may be proven by evidence of any penetration of the

female sex organ, including external genitalia such as the vulva or labia, and that proof of

penetration of the vagina is not required. Short, 564 N.E.2d at 559. We affirmed a

conviction for molestation based on sexual intercourse where a victim who was five at the

time of the incident and six at the time of trial testified regarding the defendant’s touching

her “butt” with his “front butt,” and there was medical evidence that the victim’s hymen

had sustained trauma. Id. The State cites this case for the proposition that proof that a

defendant’s penis and a victim’s vagina “made contact” is sufficient evidence of

penetration. Appellee’s Br. p. 22.

       The State wholly fails to acknowledge our supreme court’s decision in Spurlock v.

State, 675 N.E.2d 312 (Ind. 1996), which Adcock argues is controlling here. This case,

while agreeing with Short’s general holding and that “proof of the slightest penetration is

enough to support a conviction,” clearly establishes that mere contact between a male and

female sex organ is not by itself sufficient evidence of penetration. Spurlock, 675 N.E.2d

                                             15
at 315. There, the twelve-year-old victim testified that the defendant’s penis touched her

vagina. She also said that the defendant “tried” to have intercourse with her but she did

not know whether he had penetrated her vagina, and there was no medical evidence of

penetration. The court reversed the defendant’s conviction for Class A felony child

molesting because there was insufficient evidence of penetration. Spurlock, 675 N.E.2d at

315. The court specifically noted that, unlike Short, it was “confronted with a situation

where the victim herself, who was of an age to understand and respond to the questions,

did not state that penetration occurred and there was no medical or physical evidence of

penetration.” Id.

        L.P. was twenty at the time of trial, describing acts that allegedly took place when

she was fourteen or fifteen. At no time did she testify that Adcock penetrated any part of

her genitalia with his penis; in fact, the prosecutor never asked her whether such penetration

occurred. In describing Adcock’s digital penetration of her, L.P. testified as to Adcock

penetrating her external genitalia but not her vagina. Thus, she had the capability of

describing such penetration by Adcock’s penis if it had occurred, but she did not. 9 There

was no medical or physical evidence of penetration. We conclude there is a total absence

of evidence of Adcock having penetrated L.P.’s sex organ with his penis, and such absence

is plain and obvious on the face of the record and should have been noticed by appellate

counsel if he reviewed the transcript of Adcock’s trial in full. That transcript is relatively

brief. The State makes no argument that Spurlock is distinguishable from the present case;


9
 L.P. testified that Adcock’s finger went “[i]nside, but not inside . . . [a]round the hole . . . [i]n the folds.”
Tr. p. 460.
                                                       16
it does not even mention the case in its brief. We see no grounds for distinguishing it, and

it was available to appellate counsel at the time of Adcock’s direct appeal. In light of

Spurlock, we believe that if appellate counsel had challenged the sufficiency of the

evidence on Counts 3 and 6 on direct appeal, we would have been compelled to reverse

those convictions.

       We further observe that, although there was evidence that Adcock touched L.P.’s

vagina with his penis, it is not possible on appeal to merely reduce a conviction for

molestation or sexual misconduct with a minor by penetration to the less-serious offense

of molestation or misconduct by touching or fondling when the evidence of penetration is

lacking. See Downey v. State, 726 N.E.2d 794, 798-99 (Ind. Ct. App. 2000), trans. denied.

“While child molesting by fondling or touching is a lesser offense than child molesting by

deviate sexual conduct [or penetration] in terms of sentencing, it is neither inherently nor

factually included in the greater offense and is in fact an entirely separate offense.” Id. at

799. Thus, a sufficiency challenge to Adcock’s convictions on Counts 3 and 6 would have

resulted in complete vacation of those convictions, not their reduction to lesser felonies.

See also Spurlock, 675 N.E.2d at 317 (ordering vacation of child molesting conviction

unsupported by sufficient evidence of penetration, not reduction of that conviction to a

lesser conviction for molestation by touching or fondling).

       To summarize, we conclude appellate counsel, for no apparent strategic or tactical

reason, overlooked significant and obvious problems with the sufficiency of the evidence

supporting each of Adcock’s convictions. If such arguments had been made, there is more

than a reasonable probability that they would have been successful; we would have been
                                           17
required to vacate each of the convictions. And, because those vacations would be based

upon insufficient evidence, the State would be precluded by the Double Jeopardy Clause

from retrying Adcock. See Jaramillo v. State, 823 N.E.2d 1187, 1190 (Ind. 2005), cert.

denied. We also conclude that these sufficiency problems are stronger than the issues

appellate counsel actually raised on direct appeal. As such, Adcock received ineffective

assistance of appellate counsel as a matter of law, and his convictions must now be vacated.

       We recognize that L.P. testified at length about a variety of inappropriate and illegal

conduct by Adcock and that as a result of our decision today, he will face no legal

consequences for those actions. Nevertheless, it was the State’s duty to present sufficient

evidence to support Adcock’s convictions. It was the duty of appellate counsel to bring

the plain, significant, and obvious sufficiency problems with Adcock’s convictions to this

court on direct appeal. And, it is our duty to follow the law as clearly set forth in our

statutes and our supreme court’s decisions and to ensure that a defendant’s convictions are

consistent with that law and the evidence presented at trial.

                                        Conclusion

       The trial court erred in granting the State’s motion for summary disposition. Rather,

we conclude as a matter of law that Adcock received ineffective assistance of appellate

counsel. We reverse and remand for the granting of Adcock’s PCR petition and the

vacating of Adcock’s convictions for two counts of Class A felony child molesting and two

counts of Class B felony sexual misconduct with a minor.




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     Reversed and remanded.

BRADFORD, J., and BROWN, J., concur.




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