MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Sep 23 2016, 10:20 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court

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
Richard Denning                                          James B. Martin
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Stetler,                                          September 23, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         01A02-1605-PC-1000
        v.                                               Appeal from the Adams Circuit
                                                         Court
State of Indiana,                                        The Honorable Patrick R. Miller,
Appellee-Respondent                                      Special Judge
                                                         Trial Court Cause No.
                                                         01C01-1305-PC-1



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 1 of 16
[1]   Andrew Stetler appeals the denial of his petition for post-conviction relief. He

      argues that the post-conviction court should have found that he received the

      ineffective assistance of trial counsel for four reasons: (1) trial counsel failed to

      object to the testimony of two sexual assault nurse examiners; (2) trial counsel

      failed to object to a jury question; (3) trial counsel failed to impeach a witness

      with a prior inconsistent statement; and (4) trial counsel failed to object or ask

      for an admonishment during the State’s closing argument. Finding no error, we

      affirm.


                                                     Facts
[2]   The underlying facts of this case were described by this Court in Stetler’s direct

      appeal:


              In July of 2010, Stetler attended a campfire in nine-year-old
              S.G.L.’s backyard. S.G.L.’s seven-year-old friend, K.H., was
              also present. During the campfire, K.H. decided to walk to her
              home next door for a pillow, and Stetler walked with her. When
              Stetler and K.H. arrived at her house and were on the back
              porch, Stetler pulled down K.H.’s pants and underpants and
              licked her “private.” Transcript at 377. After Stetler and K.H.
              returned to S.G.L’s house, S.G.L. climbed onto Stetler’s lap and
              fell asleep. S.G.L. awoke when Stetler put his hands down the
              front of her pants and inside her underwear, touching her
              “private part” with his finger. Id. at 353. Both girls reported
              Stetler’s behavior to a neighbor. The neighbor informed the girls’
              parents and the parents informed the police. Both girls were
              taken to the Child Advocacy Center in Fort Wayne, Indiana,
              where the girls were questioned about Stetler touching them.
              They were also physically examined by a Sexual Assault Nurse
              Examiner. During trial, S.G.L. testified that during the
              examination, the nurse touched her in the same location as
      Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 2 of 16
              Stetler had. The nurse testified that when she used a sterile swab
              on S.G.L.’s clitoral hood, which is in the interior of the female
              sex organ, S.G.L. confirmed she was touching her in the same
              location as Stetler had.


      Stetler v. State, 972 N.E.2d 404, 405-06 (Ind. Ct. App. 2012).


[3]   At trial, sexual assault nurse examiner (SANE) Leslie Cook testified regarding

      her examination of S.G.L. Cook has a dual role of patient care and forensic

      evidence collection. Cook testified that, as part of her examination of S.G.L.,

      she obtained a patient history, explaining:

              That’s the patient’s words. That’s why they’re telling you that
              they’re coming to see you today . . . . Patient history is the single
              most important part of, not only mine, but any kind of nursing
              diagnosis so when you go to any kind of a healthcare setting,
              your nurse is going to ask you, can you tell me why you’re here
              today because that’s going to help to formulate that nursing
              diagnosis plan for their treatment.


      Tr. p. 459, 461. Cook asked S.G.L. to tell her why she was there that day and

      S.G.L. responded appropriately. Cook performed a head-to-toe physical

      examination of S.G.L., instructing S.G.L. to put on a gown, and Cook wore

      gloves during the examination, focusing on the genitalia. S.G.L. was eleven

      years old at trial and testified that Cook was “like a nurse or something,” and

      that “She did an exam or something.” Id. at 360. The trial court permitted

      Cook to testify regarding S.G.L.’s statements, and Stetler’s counsel did not raise

      a hearsay objection.



      Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 3 of 16
[4]   After Cook testified, the jury indicated that it had a question for Cook. With no

      objection from Stetler’s attorneys, the trial court asked Cook the question: “Did

      [S.G.L.] tell you that Andy Stetler had touched her on her private parts on more

      than one occasion?” Tr. p. 469. Cook responded affirmatively.


[5]   SANE nurse Joyce Moss also testified at trial. She stated that K.H. told her

      that Stetler had pulled down K.H.’s pants and licked her “pee-pee.” Id. at 432.

      Moss also testified that K.H. said that Stetler told her not to tell anybody and

      that “he did it to my friend [S.G.L.] like ten times.” Id. at 433. Stetler’s

      attorneys did not object or move for an admonishment.


[6]   Rocky Winget was at the campfire on the night that Stetler molested the two

      girls. Winget testified that S.G.L. was sitting on Stetler’s lap and attempted to

      get up, only to have him hold her down, and that it happened more than once.

      Id. at 391. In his videotaped statement to police, Winget said that S.G.L. had

      attempted multiple times to get on Stetler’s lap but that each time, he got upset

      and pushed her off. Stetler’s attorneys did not impeach Winget with this prior

      inconsistent statement.


[7]   During the State’s closing argument, the deputy prosecutor stated to the jury

      that “[t]here is no evidence to support any reason for you to disregard the

      testimony of [K.H.]. None. You should not speculate. Your job is not to find

      a reason to find Andy Stetler not guilty. That is not your job. Your job is to

      consider the evidence presented in this cause.” Id. at 483. The State also

      argued, “You cannot put yourselves above the experts. You should not do that.


      Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 4 of 16
      If you do that then what you’re [sic] job is not considering the evidence, but

      now your job is beginning trying [sic] to find a way to find him not guilty.” Id.

      at 485. Stetler’s attorneys did not object to these statements.


[8]   Following the trial, the jury found Stetler guilty of two counts of class A felony

      child molesting—one count for each victim. Stetler admitted to being an

      habitual offender. The trial court sentenced him to an aggregate term of ninety

      years imprisonment. Stetler appealed, arguing that the evidence was

      insufficient and that the sentence was inappropriate. This Court affirmed. Id.

      at 409.


[9]   On May 24, 2013, Stetler filed a pro se petition for post-conviction relief,

      amending the petition by counsel on August 27, 2015. A post-conviction

      hearing was held on February 23, 2016, and the post-conviction court denied

      the petition on April 8, 2016. In pertinent part, the post-conviction court found

      as follows:

              20.      The Court finds that the decision not to use the pretrial
                       statement of Winget was a strategic decision by defense
                       counsel, [and] the evidence does not support a finding of
                       any resulting prejudice. Therefore, the court finds no basis
                       for relief . . . .


              21.      Stetler contends . . . that defense counsel was ineffective
                       when they failed to object to hearsay testimony of Leslie
                       Cook and Joyce Moss. Both Cook and Moss are [SANEs]
                       and testified about their respective examinations of the two
                       different children molested by Stetler. The court finds the
                       statements to fall within the hearsay exception found in

      Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 5 of 16
                 Rule 803(4) of the Indiana Rules of Evidence and therefore
                 were readily admissible. Therefore, there is no basis for
                 relief . . . .


                                                ***


        23.      The court finds that the [juror question of Cook as to
                 whether S.G.L. had told her that Stetler had touched her
                 on her private parts on more than one occasion] was
                 objectionable.


                                                ***


        26.      The failure to object to the juror question did not result in
                 prejudice such that the outcome of the criminal trial would
                 be different had counsel objected. Counsel’s failure to
                 object was not so significant to amount to ineffective
                 assistance of counsel. Therefore, the court finds no basis
                 for relief . . . .


                                                ***


        29.      Finally, Stetler contends defense counsel failed to object
                 during the prosecutor’s closing argument. . . . Trial counsel
                 testified that they decided against objecting because it
                 could have resulted in the prosecutor emphasizing the
                 same points. Again, this was a strategic decision made by
                 competent trial counsel. Stetler’s trial counsel was
                 afforded the opportunity to address the jury as well. No
                 prejudice resulted from the counsel’s failure to object
                 during the prosecutor’s closing argument. Therefore, the
                 court finds no basis for relief . . . .




Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 6 of 16
       Appellant’s App. p. 79-81 (some internal citations omitted). Stetler now

       appeals.


                                    Discussion and Decision
                                      I. Standard of Review
[10]   The general rules regarding the review of a ruling on a petition for post-

       conviction relief are well established:


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
               “When appealing from the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment.” Id. To prevail on appeal from the denial of post-
               conviction relief, a petitioner must show that the evidence as a
               whole leads unerringly and unmistakably to a conclusion
               opposite that reached by the post-conviction court. Weatherford v.
               State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
               conviction court in this case made findings of fact and
               conclusions of law in accordance with Indiana Post–Conviction
               Rule 1(6). Although we do not defer to the post-conviction
               court’s legal conclusions, “[a] post-conviction court’s findings
               and judgment will be reversed only upon a showing of clear
               error—that which leaves us with a definite and firm conviction
               that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
               102, 106 (Ind. 2000) (quotation omitted).


       Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[11]   A claim of ineffective assistance of trial counsel requires a showing that: (1)

       counsel’s performance was deficient by falling below an objective standard of


       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 7 of 16
       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

       probability that, but for counsel's unprofessional errors, the result of the

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

       reasonable probability arises when there is a ‘probability sufficient to undermine

       confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

       prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

       Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance

       claim based upon the prejudice prong, we may do so without addressing

       whether counsel's performance was deficient.” Baer v. State, 942 N.E.2d 80, 91

       (Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be

       resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824

       (Ind. 2002).


                                        II. Nurse Testimony
[12]   Stetler argues that his trial attorney should have objected to the testimony

       provided by Nurses Cook and Moss. According to Stetler, portions of their

       testimony constituted inadmissible hearsay that would not have been admitted

       had an objection been made.


[13]   Hearsay—an out-of-court statement used to prove the truth of the matter

       asserted—is generally inadmissible unless it falls under an exception. Ind.


       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 8 of 16
       Evidence Rules 801(c), 802. Evidence Rule 803(4) provides an exception for a

       statement that:


               (A)      is made by a person seeking medical diagnosis or
                        treatment;


               (B)      is made for—and is reasonably pertinent to—medical
                        diagnosis or treatment; and


               (C)      describes medical history; past or present symptoms, pain
                        or sensations; their inception; or their general cause.


       Evid. R. 803(4). To determine if hearsay should be admitted under this

       exception, we ask two questions: (1) “is the declarant motivated to provide

       truthful information in order to promote diagnosis and treatment,” and (2) “is

       the content of the statement such that an expert in the field would reasonably

       rely on it in rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d

       329, 331 (Ind. 1996).


[14]   When a party attempts to admit hearsay under this exception and the hearsay

       statements were made by a child, “we require a more robust evidentiary

       foundation[.]” VanPatten v. State, 986 N.E.2d 255, 257 (Ind. 2013). Therefore,

       there must be evidence that the declarant understood the professional’s role.

       “This evidence does not necessarily require testimony from the child-declarant;

       it may be received in the form of foundational testimony from the medical

       professional detailing the interaction between him or her and the declarant,




       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 9 of 16
       how he or she explained his role to the declarant, and an affirmation that the

       declarant understood that role.” Id. at 261.


                                            A. Nurse Cook
[15]   With respect to Nurse Cook, Stetler focuses on her testimony that S.G.L. told

       Cook that Stetler had touched her on her internal clitoral hood. According to

       Stetler, “[t]his evidence was hearsay and no foundation had been laid for the

       medical exception to the hearsay rule.” Appellant’s Br. p. 14. Therefore, had

       counsel objected, it would have been sustained, and as this evidence was the

       sole evidence establishing penetration, Stetler would not have been convicted of

       a class A felony.


[16]   Stetler argues that the State failed to establish a sufficient foundation under

       Rule 803(4) with respect to Cook’s testimony. We turn first to the first prong of

       our inquiry—whether the declarant was motivated to provide truthful

       information. In this case, S.G.L. was nine years old at the time, meaning that

       she likely understood the need to be truthful during a medical examination. Cf.

       VanPatten, 986 N.E.2d at 265 (noting that if the six-year-old victim had been

       older, “the appearance of the building, the exam room, and [the nurse’s] scrubs

       and job title would probably be sufficient circumstances from which to infer

       that [she was] motivated to speak truthfully”). Nurse Cook testified that while

       she was examining S.G.L., Cook was wearing gloves and S.G.L. was wearing a

       gown. S.G.L. testified that Cook was “like a nurse or something” and that

       “[s]he did an exam or something.” Tr. p. 360. We find that this evidence


       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 10 of 16
       sufficiently establishes the first prong of our inquiry—that S.G.L. was

       motivated to provide truthful information for the purpose of medical diagnosis

       and treatment.


[17]   With respect to the second prong—whether the hearsay statements were such

       that an expert in the field would reasonably rely on them in rendering diagnosis

       or treatment—Stetler argues that S.G.L.’s statements were obtained exclusively

       in Cook’s forensic, as opposed to her diagnostic or treatment, role. This Court

       has determined that statements about the nature of abuse, even if they identify

       the perpetrator, can satisfy this prong of the reliability test. Steele v. State, 42

       N.E.3d 138, 142 (Ind. Ct. App. 2015). Therefore, in cases involving child

       abuse, “courts may exercise their discretion in admitting medical diagnosis

       statements which relay the identity of the perpetrator.” Id.


[18]   In this case, during Cook’s head-to-toe physical examination of S.G.L., the

       child had no difficulty telling the nurse what had happened, talking about some

       soreness she had experienced, and stating the identity of the perpetrator. These

       statements were germane to the nurse’s recommendations for diagnosis and

       treatment. We find that this evidence sufficiently establishes the second prong.


[19]   In sum, we find that the post-conviction court did not err by determining that

       the foundation for S.G.L.’s hearsay statements to Nurse Cook had been

       properly laid by the State. In other words, had an objection been raised by

       Stetler’s attorneys, it would have been overruled. We find no ineffective

       assistance on this basis.


       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 11 of 16
                                             B. Nurse Moss
[20]   With respect to Nurse Moss, Stetler focuses on the testimony that K.H. told

       Moss that Stetler had licked S.G.L.’s privates ten times. Stetler argues that this

       testimony does not fit within any exceptions to the hearsay rule and that his

       attorneys’ failure to object to it “prejudiced Stetler because it was evidence of

       prior misconduct which S.G.L. had not testified about and was different in

       nature from the accusation S.G.L. had made.” Appellant’s Br. p. 14.


[21]   We agree that this testimony was objectionable. Initially, we note that Stetler’s

       attorneys would not have been able to predict that this testimony was about to

       occur because it was in response to the very general question, “anything else?”

       PCR Tr. p. 40. Furthermore, counsel testified that he had to make a decision

       about whether to call the testimony to the trial court’s attention and ask to

       admonish the jury or to refrain from commenting and hope that the jury would

       not “spend too much time on it.” Id. at 41.


[22]   It is well established that a failure to object does not constitute ineffective

       assistance of counsel if the decision to remain silent was a strategic one.

       Pennycuff v. State, 745 N.E.2d 804, 815 (Ind. 2001). Indeed, a defense attorney

       may well pass up an opportunity to object out of a desire to avoid focusing the

       jury’s attention on a particular statement. Id. In this case, that is precisely what

       occurred, and the post-conviction court properly declined to second-guess

       counsel’s strategic decision. We find no error on this basis.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 12 of 16
                                         III. Juror Question
[23]   Next, Stetler argues that his attorneys were ineffective for failing to object to a

       jury question asking Nurse Cook if S.G.L. told her that Stetler “had touched

       her on her private parts on more than one occasion.” Tr. p. 469. The post-

       conviction court found that, while the question was objectionable, Stetler has

       not established prejudice stemming from the lack of an objection. As noted

       above, to establish prejudice, Stetler must show that, but for his attorneys’

       failure to object, there is a reasonable probability that the outcome of the trial

       would have been different. Davidson, 763 N.E.2d at 444.


[24]   Initially, we note that the jurors’ question was not specific in that it did not

       distinguish between acts of touching that occurred in this incident and any acts

       that may have occurred on other occasions altogether. In other words, the

       question could have been an inquiry about repeated touching during this

       incident. And Cook simply responded “[s]he did,” without further elaboration

       or specific details. Tr. p. 469. Aside from Nurse Moss’s unresponsive remark

       about K.H.’s statement, the record is devoid of questioning or testimony about

       prior conduct. The State did not attempt to present evidence or argument about

       ongoing acts of molestation that would have caused the jury to convict based

       upon a propensity to commit sexual acts upon a child. Instead, the State

       elicited from S.G.L. that she considered Stetler a friend at the time of the

       assault but no longer thought of him as a friend at the time of trial because “[h]e

       did that to me,” implying that this was the first time Stetler had molested her.

       Tr. p. 365.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 13 of 16
[25]   The evidence in the record strongly supported Stetler’s guilt, and this brief,

       general, and isolated instance of testimony in response to the jury question was

       inessential to the State’s case. Therefore, we find that the post-conviction court

       did not err by finding that Stetler has not established a reasonable probability

       that if his attorneys had objected to the jury question and the objection had

       been sustained, the outcome of the trial would have been different.


                                  IV. Witness Impeachment
[26]   Next, Stetler argues that his attorneys should have impeached Winget’s

       testimony with his prior inconsistent statements that he had made to police. In

       both his police interview and trial testimony, Winget admitted to being

       extremely drunk during his observations of what happened at the campfire. Tr.

       p. 389-90. Consequently, counsel made a strategic determination that Winget

       was an unreliable witness lacking credibility and was not worried about the jury

       giving significant weight to his testimony. Moreover, counsel was “concerned”

       that if Winget’s entire prior statement had been admitted, it would have been a

       net negative result for Stetler. PCR Tr. p. 43. In addition to Winget being a

       generally non-credible witness, “the less those little girls were on my client’s lap

       with the jury, the better.” Id. In other words, Stetler’s attorneys made a

       strategic decision to refrain from emphasizing this testimony for the jury

       because Winget was not a reliable, credible witness. The post-conviction court

       did not err by declining to second-guess this strategy.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 14 of 16
                                       V. Closing Argument
[27]   Finally, Stetler argues that his attorneys should have objected to certain

       statements made by the State during closing arguments. The statements to

       which he directs our attention are the following:


            “There is no evidence to support any reason for you to disregard the
             testimony of [K.H.]. None. You should not speculate. Your job is not
             to find a reason to find Andy Stetler not guilty. That is not your job.
             Your job is to consider the evidence presented in this cause.” Id. at 483.

            “You cannot put yourselves above the experts. You should not do that.
             If you do that then what you’re [sic] job is not considering the evidence,
             but now your job is beginning trying [sic] to find a way to find him not
             guilty.” Id. at 485.

       To the extent that Stetler contends that the second statement improperly urged

       the jury to credit and give weight to Cook’s testimony, we note that the jury

       was correctly instructed with regard to expert testimony: “A person who has

       specialized education, knowledge or experience is permitted to express an

       opinion in those areas. You should evaluate this testimony as you would other

       evidence in this case. You should also consider the witness’s skill, experience,

       knowledge, and familiarity with the facts in this case.” Tr. p. 526.


[28]   Moreover, Stetler’s attorneys made a strategic decision to address the

       statements during their own closing argument rather than raising an objection

       during the State’s closing argument that may not have been sustained.

       Specifically, counsel argued as follows:



       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 15 of 16
               The statements by the two nurses, Leslie Cook and Joyce Moss
               prove any element of the crime? No. They don’t. They did their
               best to provide you with the knowledge that they have. But don’t
               leave your knowledge out of the equation. You guys are each
               independent thinkers, who have to come together as a collective
               on this matter. The only portion of their statements that is
               firsthand knowledge is if they both saw no injury on either of
               these girls and I understand with the nature of what they . . .
               what my client is accused of, there may not have been injury to
               those girls. But I want you, when you’re back in that jury room,
               ask yourselves, wouldn’t that piece of evidence really have
               helped and would it not have removed all reasonable doubt from
               your minds.


       Id. at 511-12. In other words, Stetler’s attorneys did address the statements

       made by the deputy prosecutor; they merely chose to do so during their own

       closing rather than objecting during the State’s argument. The post-conviction

       court properly declined to second-guess this matter of strategy. Stetler’s

       attorneys were zealous advocates for their client throughout the trial, and we

       find no error in the post-conviction court’s conclusions that Stetler did not

       establish ineffective assistance of counsel and that Stetler is not entitled to post-

       conviction relief on that basis.


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


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1605-PC-1000 | September 23, 2016   Page 16 of 16
