MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Jul 05 2017, 8:33 am

court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana
Steven H. Schutte                                         Ellen H. Meilaender
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Douglas Johnson,                                          July 5, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          92A04-1703-PC-436
        v.                                                Appeal from the Whitley Circuit
                                                          Court
State of Indiana,                                         The Honorable J. Brad Voelz,
Appellee-Respondent                                       Special Judge
                                                          Trial Court Cause No.
                                                          92C01-1109-PC-91



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017        Page 1 of 14
[1]   Douglas Johnson appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that he did not

      receive the ineffective assistance of trial counsel. Finding no error, we affirm.


                                                     Facts
[2]   The underlying facts in this case, as described in Johnson’s direct appeal, are as

      follows:


              H.C. and J.J. are extended relatives of Johnson’s wife. Between
              February 2007 and August 2008, H.C, then age fourteen to
              sixteen, stayed overnight at Johnson’s home. One night, she
              woke up and found that she was naked below the waist and that
              Johnson was touching her inappropriately. After that, Johnson
              allegedly had intercourse with her and told her not to tell anyone.


              At Christmastime 2008, Johnson and his wife were babysitting
              eight-year-old J.J. When J.J. asked Johnson for a drink, he took
              her into a bedroom, pulled down her pants, fondled her, and
              placed his finger inside her vagina. He threatened to hurt her if
              she told anyone.


              On March 12, 2009, H.C. told her school counselor that Johnson
              had molested her, and the police began an investigation. On
              March 14, 2009, J.J.’s parents learned of H.C.’s allegations, and
              J.J.'s father asked J.J. if anything “odd” or “weird” had ever
              occurred at Johnson’s home. Tr. at 59. J.J. began to cry
              hysterically, stating that Johnson had inserted his finger into her
              vagina when he was babysitting her. That day, J.J.’s parents
              notified the police. J.J. later indicated to Department of Child
              Services caseworker Jodie Hively that it was H.C.’s disclosures
              about Johnson that had prompted her to disclose her own
              molestation. Id. at 133. She testified that she was “scared” to tell


      Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 2 of 14
              anyone but that she was “happy that [she] could get it out of [her]
              system.” Id. at 73.


      Johnson v. State, No. 92A03-1004-CR-222, *1 (Ind. Ct. App. Jan. 14, 2011),

      trans. denied.


[3]   The State charged Johnson with Class A and Class C felony child molesting for

      the offenses related to J.J. and with Class B and Class C felony sexual

      misconduct with a minor for the offenses related to H.C. Johnson’s jury trial

      took place on March 3-5, 2010. At the close of the trial, the jury found Johnson

      not guilty of Class B felony sexual misconduct with a minor charge and guilty

      of the remaining three charges. The trial court merged the Class C felony child

      molesting conviction into the Class A felony child molesting conviction and, on

      March 29, 2010, sentenced Johnson to concurrent terms of thirty-six years for

      Class A felony child molesting and six years for Class C felony sexual

      misconduct with a minor. Johnson pursued a direct appeal. This Court

      affirmed and our Supreme Court denied transfer. Id.


[4]   On September 14, 2011, Johnson filed a petition for post-conviction relief; on

      March 7, 2016, he filed an amended petition. Among other things, Johnson

      argued that he received the ineffective assistance of trial counsel. The post-

      conviction court held an evidentiary hearing on August 4, 2016, and trial

      counsel testified at that hearing. On February 6, 2017, the post-conviction

      court denied Johnson’s petition. Johnson now appeals.




      Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 3 of 14
                                   Discussion and Decision
                                      I. Standard of Review
[5]   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).


[6]   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

      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

      Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 4 of 14
      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).


                              II. Assistance of Trial Counsel
[7]   Johnson raises three arguments with respect to the performance of trial counsel

      at trial: (1) trial counsel was ineffective for deciding not to object to the

      admission into evidence of the victims’ recorded pretrial interviews; (2) he was

      ineffective for failing to object to vouching and drumbeat testimony; and (3) the

      cumulative impact of counsel’s allegedly deficient performance prejudiced

      Johnson.


                            A. Victims’ Recorded Interviews
[8]   At Johnson’s trial, the State introduced into evidence the recorded interviews of

      H.C. and J.J. that were conducted by Columbia City Police Detective Tim

      Longenbaugh and Department of Child Services investigator Jodie Hively.

      H.C., J.J., Detective Longenbaugh, and Hively also testified during the trial.

      According to Johnson, trial counsel should have objected to this evidence




      Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 5 of 14
       because it was inadmissible pursuant to hearsay rules and Indiana Code section

       35-37-4-6.1


[9]    It is undeniable that these videotaped statements were inadmissible. At the

       post-conviction hearing, however, counsel testified that as a matter of strategy,

       he preferred that the statements be introduced into evidence. He wanted the

       jury to see those interviews, as he believed they showed that the girls were led

       and prodded by the interviewers and had made inconsistent statements. In

       counsel’s view, the recorded interviews could be used to attack the credibility

       and reliability of the victims’ trial testimony.


[10]   Our Supreme Court has explained that “[f]ew points of law are as clearly

       established as the principal that ‘[t]actical or strategic decisions will not support

       a claim of ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind.

       2002) (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)). Even the best

       criminal defense attorneys may disagree on the best or most effective strategy in

       a particular case; consequently, courts must give great deference to counsel’s

       strategic decisions. Id. Therefore, we will not second-guess trial strategy unless

       it is so deficient or unreasonable as to fall outside of the objective standard of

       reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).




       1
         This statute provides that a statement or videotape made by a “protected person” is admissible under
       certain circumstances even if it would otherwise be excluded as hearsay. “Protected person” includes only
       children under the age of fourteen, I.C. § 35-37-4-6(c), meaning that this statute would not apply to
       seventeen-year-old H.C. And a foundation must be laid at a separate hearing for the admission of the
       videotape. I.C. § 35-37-4-6(e). Here, no such hearing occurred.

       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017              Page 6 of 14
[11]   Johnson directs our attention to authority establishing that we should not credit

       a strategic decision that “resembles more a post hoc rationalization of counsel’s

       conduct than an accurate description of their deliberations prior to sentencing.”

       Wiggins v. Smith, 539 U.S. 510, 526-27 (2003). The record belies Johnson’s

       contention that trial counsel’s testimony was a post hoc rationalization:


           • During closing argument, counsel told the jurors that to evaluate
             credibility, they needed to examine what was said all along rather than
             focusing solely on what was said at trial. Trial Tr. p. 204.
           • He told the jurors to listen to the interviews, noting that “[s]ome people
             might say, [counsel], why are you putting those [videos] into evidence?
             Because you [the jury] gotta get the whole context folks of what’s going
             on here.” Id. at 206.
           • Trial counsel then spent the majority of his closing argument highlighting
             things that were said and done in the videos to argue that the victims
             were not credible:
             • He pointed to a statement made by H.C. during her interview that the
                school resource officer “kind of bribed me by buying pop and some
                other things” to try “to get me to talk.” Id. at 135.
             • He pointed to a statement made by J.J. during her interview that she
                had been told by her father that Johnson had “done it to somebody
                else.” Id. at 204-06.
             • Counsel highlighted that H.C. was resistant to saying anything during
                her interviews, that she remained silent when asked to show where
                Johnson touched her, that she was subject to leading questions and
                prodding, and that the interviewers asked questions assuming
                something had happened and were the first to make suggestions that
                H.C. ultimately agreed with or never actually confirmed. Id. at 206-
                16.
             • He pointed to inconsistencies in H.C.’s statements regarding details
                such as whether clothes were on or off, or where Johnson’s hands
                were. Id. at 204-05, 208.



       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 7 of 14
               • He also pointed to inconsistencies in J.J.’s statements about which
                 finger Johnson used to penetrate her vagina and about whether or not
                 Johnson had closed the bedroom door. Id. at 205, 217-19.
               • Trial counsel argued that a “seed” was planted in J.J.’s head when
                 she was told about what H.C. had said, that her statements during the
                 interview sounded programmed, and that it was Hively who
                 introduced certain ideas during the interview. Id. at 211, 216-19.

       It is readily apparent that counsel did, in fact, make a strategic decision to

       highlight these videotaped statements to the jury. He wanted the jurors to see

       those videos so that he could use them to form his argument that the victims’

       claims should not be believed. This was not a post hoc rationalization.


[12]   Johnson also argues that, even if this was not a post hoc rationalization, it was

       a strategy that was unreasonable as a matter of law. We disagree. It is a

       reasonable trial strategy to admit a victim’s pretrial statements into evidence to

       use those statements to attack the victim’s credibility. See Hinesley v. State, 999

       N.E.2d 975, 982-84 (Ind. Ct. App. 2013) (holding that it was a reasonable

       strategic decision to allow admission of pretrial statements where counsel

       wanted to use those statements to show the molestation accusations were

       unreliable); Curtis v. State, 905 N.E.2d 410, 414-15 (Ind. Ct. App. 2009) (same).

       In our view, trial counsel’s strategy of attempting to undercut the reliability of

       the victims was eminently reasonable. Indeed, the jury acquitted Johnson of

       the second most serious charge he faced, suggesting that counsel’s strategy

       achieved some success. Under these circumstances, we find that the post-

       conviction court did not err by concluding that Johnson did not receive the



       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 8 of 14
       ineffective assistance of trial counsel for the failure to object to the admission of

       these videos.


                       B. Vouching and Drumbeat Testimony
[13]   Next, Johnson argues that trial counsel was ineffective for not objecting to

       alleged “vouching” and “drumbeat repetition” evidence. This is yet another

       area where counsel explained his strategy as a trial attorney. He told the post-

       conviction court that he decides whether to object to testimony as a strategic

       matter during the course of a trial, depending on whether the testimony is really

       hearsay, whether it will hurt his case or is important enough to warrant an

       objection, and whether he thinks he can use it to help the argument he intends

       to make. PCR Tr. p. 14-18, 23-24. Trial counsel saves objections for things

       that truly matter, and if the witness is relaying the general nature of the

       accusation without going into detail, he generally believes that it is not worth an

       objection. Id. at 17-18.


[14]   The so-called drumbeat evidence consists of the following:


           • Detective Longenbaugh testified that, during his interview with H.C., “I
             had just come out and ask[ed] her at one point if [Johnson] had sex with
             her and she told me yes.” Trial Tr. p. 82.
           • Johnson asserts that Hively repeated H.C.’s and J.J.’s stories, but a
             review of her testimony shows that she was not asked by the State and
             did not testify as to what either child told her regarding Johnson’s sexual
             activity with them.
           • J.J.’s father testified that when he asked J.J. whether anything odd had
             happened at Johnson’s house, J.J. began crying and said that Johnson
             had “touched her on her private area.” Id. at 59. Her mother testified

       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 9 of 14
               that J.J. was crying and said that Johnson had “touched her wrong.” Id.
               at 52.

       Initially, we note that in our view, this limited collective testimony does not

       constitute improper drumbeat evidence. See Norris v. State, 53 N.E.3d 512, 525-

       26 (Ind. Ct. App. 2016) (noting that under certain circumstances, a drumbeat

       repetition of victim’s statements can prejudice a jury). But even if it did, this

       evidence is precisely the type of evidence to which trial counsel explained he

       strategically refrains from objecting. We cannot conclude that this evidence is

       so voluminous and prejudicial that this strategic decision was unreasonable as a

       matter of law, and we decline to second-guess counsel in this regard.


[15]   The so-called vouching evidence consists of the following:


           • Hively and Detective Longenbaugh each testified that the detective’s
             attempt to interview H.C. had not gone well because H.C. did not want
             to talk to him. They further testified that it had “gone better” when
             Hively interviewed H.C. because she was more willing to open up,
             though she remained reluctant to talk. Id. at 81-82, 84-85, 122-23.
           • Hively was asked whether J.J. was “emotionally appropriate” during the
             interview. Hively responded, “I guess I don’t like that word. I don’t
             think there is an appropriate response for a child that’s been abused.” Id.
             at 121.
           • Hively was asked whether J.J. was afraid to correct her during the
             interview. Hively answered, “She would correct me if I got something
             wrong, because part of [the child interview process] is when a child says
             something, we repeat it and if I didn’t get it right, then she would correct
             me.” Id. at 120. She explained that this process was “important”
             because “it shows that we’re not leading the child[,] that she has no fear
             of saying, hey, this is wrong, that they’re being truthful during an
             interview.” Id.


       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 10 of 14
       At the time of the trial, Indiana allowed “some form of vouching of child

       witness testimony in child molestation cases.” Hoglund v. State, 962 N.E.2d

       1230, 1235 (Ind. 2012).2 Specifically, at that time, witnesses were permitted to

       provide opinions that would “facilitate an original credibility assessment of the

       child by the trier of fact, so long as they do not take the direct form of ‘I believe

       the child’s story’ or ‘In my opinion the child is telling the truth.’” Lawrence v.

       State, 464 N.E.2d 923, 925 (Ind. 1984), overruled by Hoglund.


[16]   With respect to the first statement, we cannot conclude that testimony

       explaining why H.C. was interviewed twice—because she would not talk to one

       interviewer but opened up to a second interviewer—was improper vouching.

       There was no suggestion that the second interview went better because H.C.

       told the truth the second time; instead, it went better because she was willing to

       engage with the interviewer and answer questions. Consequently, any

       objection made by trial counsel would have been overruled.


[17]   With respect to the second statement, Hively did not say that J.J. was abused or

       that she believed J.J.’s statement. Instead, she was challenging the premise of

       the question and explaining that generally, one cannot draw any conclusions

       about whether children have been abused based on their emotional behavior




       2
         Since that time, Indiana’s caselaw regarding vouching testimony in child molestation cases has evolved, but
       we must judge counsel’s performance on the basis of the law as it existed at the time of his representation of
       Johnson. E.g., Harrison v. State, 707 N.E.2d 767, 776 (Ind. 1999) (holding that an attorney will not be deemed
       ineffective for failing to anticipate a change in the existing law).

       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017              Page 11 of 14
       during an interview. As this was not vouching testimony, had counsel objected,

       it would have been overruled.


[18]   The third statement comes the closest to improper vouching testimony. Under

       the circumstances of this case, however, it would have been admissible in any

       event. As noted above, the primary defense strategy in this case focused on

       questioning the credibility of the victims and arguing that the children had been

       led by adults into making these accusations. Having utilized this strategy, the

       defense opened the door to testimony that Hively had not, in fact, led J.J. into

       making these accusations. Sampson v. State, 38 N.E.3d 985, 991-92 (Ind. 2015)

       (testimony regarding indications of coaching of a child molestation victim is

       inadmissible unless defense opens the door by raising questions of victim

       credibility by suggesting victim was led or coached by others).


[19]   Johnson argues that he made only a “general impeachment” of the witnesses’

       credibility, which did not open the door to Hively’s testimony. But counsel

       argued, among other things, that H.C. was bribed to make statements, that both

       children were asked leading questions by various adults, and that a seed was

       planted in J.J.’s mind when her father and others made various statements.

       This strategy goes beyond a general impeachment and clearly opened the door

       to Hively’s testimony that, during the interview, J.J. would correct her and she

       did not lead the child into making accusations. Consequently, had trial counsel

       objected to this testimony, it would have been overruled.




       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 12 of 14
[20]   Finally, we note that even if any of this testimony constituted improper

       vouching, Johnson cannot establish prejudice given the overwhelming evidence

       of his guilt. Two female children, who had no opportunity to conspire together

       and had no motive to lie, independently accused Johnson of engaging in sexual

       acts with them while they were in his care. Furthermore, Johnson agreed to

       undertake a polygraph test, which indicated deception and was admitted into

       evidence. The challenged testimony is brief in nature, was not unduly

       emphasized during the trial, and was not even referenced by the prosecutor

       during closing argument. Under these circumstances, we cannot conclude that

       there was a reasonable probability the result of the trial would have been

       different had this testimony been excluded.


                                      C. Cumulative Impact
[21]   Finally, Johnson contends that the cumulative impact of counsel’s errors is

       prejudicial and, had counsel conducted the trial in a different manner, there is a

       reasonable probability that Johnson would have been acquitted. See Smith v.

       State, 511 N.E.2d 1042, 1046 (Ind. 1987) (holding that it is proper for the court

       to consider the cumulative impact of counsel’s errors). Here, we have not

       found that trial counsel committed any errors. Instead, it appears to us that trial

       counsel defended Johnson vigorously and intelligently, especially given the

       weight of evidence against Johnson—including the polygraph examination,

       with which he agreed to participate before counsel was his attorney.

       Notwithstanding the evidence against Johnson, trial counsel was able to

       convince the jurors to acquit his client of the second most serious charge he

       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 13 of 14
       faced. In short, the post-conviction court did not err by finding that Johnson

       did not receive the ineffective assistance of trial counsel.


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


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017   Page 14 of 14
