MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Feb 27 2017, 9:40 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     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                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

C. Brent Martin                                          Monika Prekopa Talbot
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

George A. Reese, Jr.,                                    February 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         31A01-1609-PC-2164
        v.                                               Appeal from the Harrison Superior
                                                         Court
State of Indiana,                                        The Honorable Frank Newkirk,
Appellee-Plaintiff.                                      Jr., Special Judge
                                                         Trial Court Cause No.
                                                         31D01-1310-PC-10



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017            Page 1 of 14
                                              Case Summary
[1]   In March of 2010, Appellee-Respondent the State of Indiana (“the State”)

      charged Appellant-Petitioner George A. Reese, Jr. with Class A felony child

      molesting. Reese was found guilty following a jury trial. Reese was also found

      to be a habitual offender. He was subsequently sentenced to a term of seventy

      years: forty years for the Class A felony enhanced by thirty years for the

      habitual offender finding. On May 23, 2013, we affirmed Reese’s conviction. 1


[2]   Reese subsequently filed a petition seeking post-conviction relief (“PCR”),

      arguing that he suffered ineffective assistance of trial counsel. Following a

      hearing on Reese’s petition, the post-conviction court determined that Reese

      had failed to establish that he suffered ineffective assistance of trial counsel.

      Reese challenges this determination on appeal. Concluding that Reese has

      failed to prove that he suffered ineffective assistance of trial counsel, we affirm.



                               Facts and Procedural History
[3]   Our memorandum decision in Reese’s prior direct appeal, which was handed

      down on May 23, 2013, instructs us to the underlying facts and procedural

      history leading to this post-conviction appeal:


                K.J., born in March 1996, lived with her family in New Albany,
                Floyd County. In May 2008, the family met Reese at a cookout.




      1
          Reese did not challenge his sentence on appeal.


      Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 2 of 14
        Reese moved in with them in New Albany, and when they
        moved in June 2008 to a four-bedroom one-bathroom house in
        Palmyra, Harrison County, Reese moved with them. The
        household in Palmyra consisted of five children and seven adults:
        K.J., her older brother R.J., her older sister L.J., her younger
        brother M.J., her younger sister S.J., her father Robert, her
        stepmother Christina, her stepmother’s cousin Tommy,
        Tommy’s wife Angela, Tommy’s brother Michael Priddy,
        Michael Devore, and Reese. While in Palmyra, Reese asked
        Robert and Christina if they knew “where he could get some
        young pussy.” Tr. p. 1087. Robert and Christina said no.

        Reese, who was fifty-two years old, flirted with twelve-year-old
        K.J., bought her ice cream and other items, and treated her
        differently from the other children. He also hugged her, which
        made her uncomfortable.

        Robert was cooking out in the backyard one day when he sent
        K.J. into the kitchen for some ketchup. Upon walking into the
        kitchen, she saw Reese there. Reese asked K.J. to give him a
        blow job and pulled down his pants. Scared, K.J. knelt down
        and put her mouth on his penis. When S.J. appeared at the back
        door and saw them, K.J. stopped and went to her room, mad and
        humiliated that her little sister had to see her like that.

        About a month after the family moved to Palmyra, S.J. told
        Christina what she had seen. When Robert learned about it, he
        confronted Reese, who admitted what he had done with K.J.
        Robert kicked Reese out of the house.

        Robert invited Reese back to Palmyra sometime after the wind
        storm in September 2008 because he wanted to find out his last
        name. At some point, K.J. told L.J. about what Reese made her
        do. L.J. eventually stuck a knife to Reese’s throat and ordered
        him out of the house. When Robert and Christina asked where
        Reese was, L.J. said she put a knife to his throat and kicked him
        out because he had been making K.J. do things to him. Robert

Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 3 of 14
        called Reese and threatened him.

        When Reese lived with the family, he gave them money for
        groceries and also bought them an above-ground pool. Several
        months after L.J. kicked him out at knifepoint, Reese called
        Robert and offered to buy the family some furniture. Robert said
        they did not need anything from him. Reese then asked to talk
        with K.J. Robert allowed it but monitored the call from another
        phone in the house. Reese asked K.J. “how his dick tasted in her
        mouth.” Id. at 1085. Robert angrily interjected that he would rip
        Reese’s heart out and feed it to him. Reese hung up.

        Indiana State Police Detective William Wibbels began
        investigating the case in November 2009. During his
        investigation, he spoke with K.J., who had since been removed
        from the home and was staying at a youth shelter. K.J. told
        Detective Wibbels that Reese made her perform oral sex on him
        about two hundred times.

        The State filed numerous charges against Reese but dismissed all
        but one count of Class A felony child molesting and one count of
        being a habitual offender. Before trial, Reese filed a motion in
        limine seeking to prohibit the State from presenting evidence of
        his alleged uncharged misconduct, which the court granted.
        Reese was tried in February 2012, but the jury deadlocked and
        the court declared a mistrial. Before the second trial, Reese took
        a polygraph examination, which he had been demanding to take
        since he was first charged. The examiner asked Reese in three
        different ways whether he had engaged in oral sex with K.J.
        Each time, Reese responded no and the examiner determined he
        was being untruthful.

        K.J. and others testified for the State on retrial. K.J. testified that
        Reese asked her for a blow job and pulled down his pants, and
        she complied. On cross, Reese verified with K.J. that she had
        initially told Detective Wibbels that she was forced to perform
        oral sex on Reese about two hundred times but was now telling
Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 4 of 14
        the jury that it happened only once. The following exchange
        then occurred:


                 Q: Why would you lie to Officer Wibbels and tell
                 him it happened two hundred times and then today
                 say it only happened once?

                 A: We were talking about several different me [sic] so
                 ...

                 Q: Okay. So if you’re talking about several different
                 people that means it’s okay to lie about what George
                 did to you?

                 A: It wasn’t practically lying.

                 Q: Pardon me?

                 A: It wasn’t lying. It was mis-confusion.

        Id. at 833. Reese then pointed out several inconsistencies
        between K.J.’s deposition testimony and trial testimony. On
        redirect, K.J. acknowledged the inconsistencies but testified that
        she had never wavered about the fact that Reese put his penis in
        her mouth when she was twelve years old. She further said that
        she had been abused by a lot of men and that it was difficult to
        keep everything straight. On recross, K.J. testified that five men,
        including Reese, had sexually abused her. On redirect, the State
        asked K.J. whether there were certain things she could not
        discuss at trial, and K.J. responded affirmatively. She said that
        those rules made it more difficult to answer questions.

        Reese and others testified for the defense. Reese denied that any
        oral sex with K.J. occurred. He stated that the last time he
        stayed with K.J.’s family was for a few days in October 2008.
        One morning during that time, he thought he heard Robert
        asking K.J.’s sister L.J. in the kitchen, “[D]o you want me to lick
        your pussy[?]” Id. at 1649. Reese testified that he confronted

Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 5 of 14
              Robert about it by phone in February or March 2009, and Robert
              hung up on him. Reese claimed that no one thought he had done
              anything wrong until he accused Robert of wrongdoing.

              The jury found Reese guilty of Class A felony child molesting
              and subsequently found him guilty of being a habitual offender.
              The trial court sentenced him to seventy years: forty years for the
              Class A felony enhanced by thirty years for the habitual offender
              finding.


      Reese v. State, 31A05-1206-CR-309, *1-3 (Ind. Ct. App. May 23, 2013)

      (footnotes omitted). Reese appealed, challenging only his conviction for Class

      A felony child molesting. We affirmed Reese’s conviction on appeal.


[4]   On October 21, 2013, Reese filed a pro-se PCR petition. Reese, by counsel, filed

      an amended PCR petition on March 8, 2016. In this amended petition, Reese

      claimed that he received ineffective assistance from his trial counsel. On

      August 29, 2016, the post-conviction court issued an order denying Reese’s

      petition. This appeal follows.



                                 Discussion and Decision
[5]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt


      Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 6 of 14
      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.


[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

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

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                            Ineffective Assistance of Counsel
[7]   The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.


      Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 7 of 14
      668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

      must be whether counsel’s conduct so undermined the proper function of the

      adversarial process that the trial court cannot be relied on as having produced a

      just result.” Strickland, 466 U.S. at 686.


[8]   A successful claim for ineffective assistance of counsel must satisfy two

      components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

      prong, the petitioner must establish that counsel’s performance was deficient by

      demonstrating 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. We recognize that

      even the finest, most experienced criminal defense attorneys may not agree on

      the ideal strategy or most effective way to represent a client, and therefore,

      under this prong, we will assume that counsel performed adequately and defer

      to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

      (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

      bad judgment do not necessarily render representation ineffective. Id.


[9]   Under the second prong, the petitioner must show that the deficient

      performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

      may show prejudice by demonstrating that there is “a reasonable probability

      (i.e. a probability sufficient to undermine confidence in the outcome) that, but

      for counsel’s errors, the result of the proceeding would have been different.” Id.

      A petitioner’s failure to satisfy either prong will cause the ineffective assistance

      of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

      Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 8 of 14
       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[10]   Reese contends that his trial counsel provided ineffective assistance by failing to

       object to and request a mistrial following an alleged act of prosecutorial

       misconduct. Specifically, Reese argues that he suffered ineffective assistance of

       trial counsel because trial counsel failed to object to, or request a mistrial,

       following certain comments made by the prosecution regarding evidentiary

       rulings which it claimed limited witnesses’ ability to testify completely.


[11]   To establish ineffective assistance for trial counsel’s failure to object to alleged

       misconduct by opposing counsel, a petitioner must establish that the trial court

       would have sustained the objection had one been made and that he was

       prejudiced by the failure to object. Jones v. State, 847 N.E.2d 190, 197-98 (Ind.

       Ct. App. 2006) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001)).


               In reviewing a claim of prosecutorial misconduct, we determine
               (1) whether the prosecutor engaged in misconduct, and if so, (2)
               whether that misconduct, under all of the circumstances, placed
               the defendant in a position of grave peril to which he or she
               should not have been subjected. See Wisehart v. State, 693 N.E.2d
               23, 57 (Ind. 1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1338, 143
               L.Ed.2d 502 (1999); Wright v. State, 690 N.E.2d 1098, 1110 (Ind.
               1997), reh’g denied. The “gravity of peril” is measured by the
               “‘probable persuasive effect of the misconduct on the jury’s
               decision, not on the degree of impropriety of the conduct.’”
               Wisehart, 693 N.E.2d at 57 (quoting Kent v. State, 675 N.E.2d
               332, 335 (Ind. 1996) (citing in turn Bradley v. State, 649 N.E.2d
               100, 107-08 (Ind. 1995), reh’g denied.)).
       Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 9 of 14
       Coleman v. State, 750 N.E.2d 370, 374-75 (Ind. 2001).


[12]   On direct appeal, we concluded that the prosecution’s statements amounted to

       misconduct and that this misconduct had “a probable persuasive effect on the

       jury’s decision and thus placed Reese in grave peril.” Reese, 31A05-1206-CR-

       309, *10. We therefore concluded that the prosecution committed prosecutorial

       misconduct. Id. However, we further concluded that the prosecutorial

       misconduct did not amount to fundamental error. Id. at *10-11. In reaching

       this conclusion, we stated the following:


               [I]n this case Reese opened the door to rehabilitative testimony
               on redirect. It was thus proper for the trial court to allow the
               State to give the jury some explanation of why L.J. was changing
               her testimony. Although the State’s comments went beyond
               what was appropriate, we cannot say they amount to
               fundamental error.

               The investigation into K.J.’s home revealed that the children
               were subjected to extensive sexual abuse by several men. As
               noted at trial, the prevalence of the abuse made it difficult for
               K.J. to remember the details of the one isolated incident for
               which Reese was charged. Reese had the right to cross-examine
               K.J. and indeed exercised that right by pointing out several
               inconsistencies in her deposition and trial testimony. For her
               part, K.J. maintained she was clear at trial about what had
               occurred and never wavered about the fact that Reese put his
               penis in her mouth when she was twelve years old. Although we
               determine the State committed prosecutorial misconduct, we ultimately
               conclude that Reese nonetheless received a fair trial.


       Id. at *11 (emphasis added).



       Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 10 of 14
[13]   On appeal, Reese requests that we order the post-conviction court to heed our

       prior conclusion that the prosecution’s misconduct had “a probable persuasive

       effect on the jury’s decision and thus placed Reese in grave peril,” id. at 10,

       because our prior conclusion now constitutes the law of the case which is

       binding on further proceedings in the matter. See State v. Huffman, 643 N.E.2d

       899, 901 (Ind. 1994) (citing Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985)).

       Reese acknowledges that we also concluded that the prosecution’s misconduct

       did not amount to fundamental error because (1) while some of K.J.’s

       testimony might have been inconsistent, K.J. never wavered in her testimony

       relating to sexual abuse at issue, and (2) Reese received a fair trial. Reese

       argues, however, that our finding relating to fundamental error does not

       preclude a finding that trial counsel provided ineffective assistance by failing to

       object to the prosecution’s misconduct.


[14]   In Benefield v. State, 945 N.E.2d 791, 803 (Ind. Ct. App. 2011), we

       acknowledged that “there is a subtle distinction between the fundamental error

       and ineffective assistance prejudice standards. In doing so, we stated the

       following:

               As our supreme court has explained,

                        While we frame the standard for ineffective
                        assistance of counsel and fundamental error in
                        somewhat different terms—appropriately so, since
                        the first is a standard of Federal Constitutional law
                        and the second of state criminal procedure—they will
                        invariably operate to produce the same result where


       Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 11 of 14
                        the procedural posture of the claim is caused by
                        counsel’s failure to object at trial.

               McCorker v. State, 797 N.E.2d 257, 262-63 (Ind. 2003) (footnote
               omitted). Thus, although the two standards may frequently lead
               to the same result, the analyses are different. Moreover, consider
               that “[e]rrors by counsel that are not individually sufficient to
               prove ineffective representation may add up to ineffective
               assistance when viewed cumulatively.” Pennycuff v. State, 745
               N.E.2d 804, 816-17 (Ind. 2001). As such, there could be an
               unpreserved error raised on direct appeal that was found not to
               have caused fundamental error, but nevertheless when later
               raised in a post-conviction proceeding as part of an ineffective
               assistance claim the cumulative effect of that error when combined
               with other errors may amount to ineffective assistance.


       Id. (emphasis added). Accordingly, we concluded that “fundamental error and

       prejudice for ineffective assistance of trial counsel present two substantively

       different questions.” Id. at 805. We further concluded that “when a claim of

       ineffective assistance of trial counsel is based on a failure to object, and that

       error was advanced as fundamental error on direct appeal, a finding that the

       error did not rise to fundamental error does not automatically rule out the

       possibility that the error resulted in prejudice sufficient to establish ineffective

       assistance.” Id.


[15]   In the instant matter, we previously concluded that the prosecution committed

       misconduct by eliciting testimony and making comments during closing

       arguments suggesting that “the rules” prevented L.J. and K.J. from testifying

       truthfully. Reese, 31A05-1206-CR-309, *10. In reaching this conclusion, we

       noted that the jury “might” have reasonably inferred that the State had implied

       Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 12 of 14
       that it had additional evidence of guilt which was not revealed to the jury

       during trial and that the prosecution’s misconduct “had a probable persuasive

       effect on the jury’s decision and thus placed Reese in grave peril.” Id.

       (emphasis added). However, given K.J.’s unequivocal testimony relating to the

       charged incident of sexual misconduct, we “ultimately conclude[d] that Reese

       nonetheless received a fair trial.” Id. at 11.


[16]   In addition, review of the record reveals that two fellow inmates, George Tuell

       and Christopher Wood, testified that Reese admitted to them that the charged

       incident of sexual abuse had occurred. Also, at his request, Reese was given a

       polygraph test. During this test, the examiner asked Reese in three different

       ways about whether he had ever placed his penis in K.J.’s mouth. Each time,

       Reese indicated that he had not done so. The examiner determined that each of

       these responses was untruthful.


[17]   After considering the facts of the underlying case coupled with our prior

       conclusions through the lens of ineffective assistance prejudice, we conclude

       that Reese has failed to prove that he was prejudiced, i.e., that there is a

       reasonable probability that but for the prosecution’s misconduct, the result of

       the proceeding would have been different. Reed, 866 N.E.2d at 769. As is

       outlined in our opinion on direct appeal, the record revealed that K.J.’s

       apparent confusion which led to some inconsistencies between her deposition

       and trial testimony stemmed from the fact that she was subjected to extensive

       sexual abuse by multiple men. We noted that given his line of questioning on

       cross-examination, Reese opened the door to rehabilitative testimony on

       Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 13 of 14
       redirect. Importantly, we further noted that with respect to the charged

       misconduct, K.J.’s testimony was consistent. She did not waver in her

       testimony that Reese had subjected her to sexual abuse when she was twelve

       years old by putting his penis in her mouth.


[18]   Upon review of both the record and our prior conclusions on direct appeal, we

       conclude that Reese has failed to prove that he was prejudiced by his trial

       counsel’s allegedly deficient performance. Again, a petitioner’s failure to satisfy

       either prong will cause his ineffective assistance of counsel claim to fail. See

       Williams, 706 N.E.2d at 154. Given that Reese has failed to prove prejudice, we

       conclude that Reese has failed to prove that he suffered ineffective assistance of

       trial counsel.


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


       Brown, J., concurs.


       Vaidik, C.J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1609-PC-2164 | February 27, 2017   Page 14 of 14
