MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
                                                                                Apr 23 2019, 9:40 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana
ATTORNEY FOR APPELLANT                                    Ellen H. Meilaender
SHAKIMA LEWIS                                             Supervising Deputy Attorney
                                                          General
Cara Schaefer Wieneke                                     Indianapolis, Indiana
Wieneke Law Office, LLC
ATTORNEY FOR APPELLANT
SEDRICK CURTIS
Anne Murray Burgess
Deputy Public Defender
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sedrick Curtis and Shakima                                April 23, 2019
Lewis,                                                    Court of Appeals Case No.
Appellants-Petitioners,                                   18A-PC-827
                                                          Appeal from the Lake Superior
        v.                                                Court
                                                          The Honorable Samuel L. Cappas,
State of Indiana,                                         Judge
Appellee-Respondent.                                      The Honorable Natalie Bokota,
                                                          Magistrate




Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019                           Page 1 of 25
                                                                Trial Court Cause Nos.
                                                                45G04-0603-PC-3
                                                                45G04-0704-PC-3




      Brown, Judge.


[1]   Sedrick Curtis and Shakima Lewis appeal the denial of their petitions for post-

      conviction relief. They raise two issues which we consolidate and restate as

      whether the post-conviction court erred in denying their petitions. We affirm.


                                       Facts and Procedural History

[2]   The relevant facts as discussed in Curtis’s direct appeal follow:


              Curtis is the biological father of M.C., born on November 5,
              1998, and was living with Shakima Lewis, who is M.C.’s
              biological mother, and her three other children, C.B., born on
              June 4, 1994, S.B., born on July 10, 1995, and S.L., born on July
              16, 1996. Prior to August 2001, C.B., S.B., S.L., and M.C.
              (collectively, “the children”) lived with Curtis and Lewis in Lake
              County, Indiana. On August 31, 2001, as a result of allegations
              of physical abuse, the children were removed from Curtis and
              Lewis’s home and placed in foster care with Evelyn Murad.
              During the children’s stay, Murad observed scars and open
              lacerations on C.B.’s back, arm, and side; open lacerations on
              S.B.’s back and thigh; and open lacerations on S.L.’s thigh and
              arm. The children also told Murad “secrets” they had about
              Curtis and Lewis. C.B. told Murad that Curtis and Lewis forced
              the children to perform oral sex on them. C.B. also stated that
              Curtis and Lewis would “whoop” the children with an extension
              cord. C.B. told Murad that Curtis forced C.B. and S.B. to
              perform sexual acts upon one another, sometimes in front of
              other people. C.B. also told Murad that Curtis forced S.B. and

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019      Page 2 of 25
        S.L. to perform sexual acts on one another as well. S.B. told
        Murad that Curtis would pick her up when they were both
        naked, press her close, and “dance around” with S.B. until
        “white stuff came out.” Tr. at 347.

        After hearing these secrets from the children, Murad contacted
        the children’s caseworker about the alleged abuse. The Lake
        County Advocacy Center conducted videotaped interviews of the
        children separately. During his interview, C.B. stated that Curtis
        placed his penis in C.B.’s “behind.” C.B. also stated that Curtis
        forced S.B. and S.L. to “suck” between one another’s legs.
        During her videotaped interview, S.B. stated that Curtis made
        her suck between his legs and stuck his penis between her legs.
        S.L. stated in her interview that she had to suck Curtis’s “ding-a-
        ling,” and that C.B., S.B., and M.C. had to do it too. Also, S.L.
        stated that Curtis touched her “coo-coo.” All three children
        recounted a similar story during their videotaped interviews
        where Curtis forced M.C. to give him oral sex, and M.C. bit
        down on Curtis’s penis.

        Doctor Edwin Udani conducted a physical examination on the
        children for signs of physical and sexual abuse. He found
        multiple scars on C.B. and S.B.’s backs. Subsequently, Doctor
        Kalyani Gopal interviewed the children separately about the
        allegations of abuse. After the children reported their allegations,
        Dr. Gopal began therapy with the children. During a therapy
        session, C.B. told her that Curtis forced C.B. to give him oral sex,
        and Curtis anally raped C.B. S.B. told Dr. Gopal that Curtis
        forced C.B. and S.B. to “pee” in each other’s mouths. In a
        therapy session with Dr. Gopal, S.L. told the same story. Also,
        the children each told Dr. Gopal a story about Curtis forcing
        M.C. to perform oral sex on him, and M.C. biting Curtis’s penis.


Curtis v. State, No. 45A03-0406-CR-273, slip op. at 2-4 (Ind. Ct. App. March 4,

2005) (“Curtis I”).



Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 3 of 25
[3]   The relevant facts from Lewis’s direct appeal follow:


              Lewis is the biological mother of C.B., born on June 4, 1994,
              S.B., born on July 10, 1995, S.L., born on July 16, 1996, and
              M.C., born on November 5, 1998, (collectively referred to as the
              “Children”). Prior to August of 2001, the Children lived with
              Lewis and Sedrick Lamont Curtis (“Curtis”) in Lake County,
              Indiana. On August 31, 2001, as a result of allegations of
              physical abuse, the Children were removed from Lewis and
              Curtis’s home and placed with a foster parent, Evelyn Murad
              (“Murad”). While the Children were in her care, Murad
              observed scars and open lacerations on C.B.’s back, arm, and
              side; “open spots” on S.B.’s back and thigh; and open lacerations
              on S.L.’s thigh and arm. Tr. at 51. Murad also noticed that: (1)
              the Children were extremely thin, with the exception of M.C.; (2)
              the Children were very comfortable walking around each other
              nude; and (3) C.B. treated S.B. like his girlfriend rather than his
              sister. One day, C.B. and S.B. spontaneously shared their family
              “secrets” with Murad. Id. at 59. In particular, C.B. recounted
              that sometimes he watched Lewis and Curtis having sex and that
              they would call him into the room and force him to perform oral
              sex on them. C.B. also told Murad that Lewis and Curtis would
              beat him if he did not do what they had requested. C.B. further
              recalled that he and S.B. were made to perform sexual acts on
              each other while other people paid Curtis to watch.

              S.B. told Murad that she and S.L. had to simulate a sexual act on
              each other “for the people,” and that, on several occasions, she
              was forced to perform oral sex on Curtis or she would receive a
              beating. Id. at 60. S.B. also told Murad that, sometimes, Curtis
              would pick her up while both of them were naked and would
              press her to his body and dance around the room until “white
              stuff came out of” his penis. Id. at 64. Similarly, S.L. told
              Murad that she also was forced to perform oral sex on Curtis,
              and C.B., S.B., and S.L. all agreed that M.C. had to perform oral
              sex on Curtis and that, in so doing, M.C. bit Curtis. While the


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 4 of 25
        Children were in her care, Murad also witnessed C.B. jabbing a
        little plastic toy that resembled a penis between S.B.’s legs.

        After hearing the Children’s horrific secrets, and after noticing
        the Children’s bizarre behavior, Murad contacted the Children’s
        caseworker about the alleged abuse. Subsequently, because
        Murad, who was seventy-five years old at the time of the trial,
        could no longer care for the Children, the Children were moved
        to the home of Sharon Hicks (“Hicks”).

        On November 16, 2001, the Lake County Advocacy Center
        interviewed the Children separately. During his interview, C.B.
        testified that Lewis made “[S.B.] and [S.L.] suck between each
        other’s legs” in front of ten other people and that Curtis made
        C.B., S.B. and S.L. “suck on him.” Id. at 296, 304. C.B. also
        testified that Curtis “peed on [his] sisters.” Id. at 312. C.B.
        further testified that Curtis “stuck his thing” in C.B.’s “butt,” and
        M.C. “suck[ed] on him and [M.C.] bit him.” Id. at 306-07.

        In her videotaped interview, S.B. corroborated C.B.’s testimony
        that Lewis and Curtis would make S.B. “suck between their
        legs.” Id. at 341. S.B. also testified that Curtis “put his pee-pee
        in her pee-pee” while people paid Lewis to watch. Id. at 346.
        Likewise, during her interview, S.L. testified that M.C. sucked on
        Curtis’s “ding-a-ling” and bit it. Id. at 368. She also confirmed
        that all of the Children were forced to perform oral sex on Curtis.
        S.L. further testified that Lewis touched her private area for a
        long time and that S.B. “sucked on [C.B.’s] ding-a-ling.” Id. at
        373. In another videotaped interview, M.C. testified that he bit
        Curtis but he did not know where.

        Doctor Edwin Udani (“Doctor Udani”) examined the Children
        for signs of abuse and found that C.B. and S.B. had multiple
        scars on their backs, but S.L. and M.C. did not exhibit any
        physical signs of abuse. On January 7, 2002, Doctor Kalyani
        Gopal (“Doctor Gopal”) interviewed the Children separately and
        they reported to her the allegations of physical and sexual abuse.
        Doctor Gopal began therapy with the Children, which focused

Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 5 of 25
              upon controlling the Children’s sexual urges—i.e., C.B. had
              acted sexually toward S.B.; S.B. and S.L. molested some
              children; and S.L. said that she wanted to have sex with S.B. and
              other kids.


      Lewis v. State, No. 45A03-0404-CR-187, slip. op. at 2-5 (Ind. Ct. App.

      September 8, 2004) (“Lewis I”).


[4]   The State charged Curtis and Lewis with four counts of child molesting as class

      A felonies, four counts of vicarious sexual gratification as class C felonies, and

      three counts of battery as class D felonies. Curtis I, slip op. at 4; Lewis I, slip op.

      at 5. At a joint jury trial, C.B., S.B., and S.L. testified to physical abuse by

      Curtis and Lewis. Murad testified that C.B. had scars as well as open

      lacerations all over his back, his arm, and side, and that S.B. had open spots on

      her back and her thigh. The State presented evidence of sexual abuse through

      the children’s statements to their foster parent and various counselors and

      healthcare professionals. The State also presented evidence that: S.L.

      approached S.B. sexually and asked S.B. to get on top of her and touch her in

      September or October 2002; Murad observed C.B. trying to act as though S.B.

      was his girlfriend and at one point S.B. jabbed a plastic toy that looked like a

      penis between S.B.’s legs; C.B., S.B., and S.L. walked around naked after being

      placed in Murad’s care; C.B. laid on S.L. sexually while in Hicks’s care; C.B.

      acted out sexually towards S.B.; and C.B. and S.L. played sexually.


[5]   The jury found Curtis guilty of all charges except for two counts of vicarious

      sexual gratification. Curtis I, slip op. at 4. The jury found Lewis guilty of two


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 6 of 25
      counts of child molesting involving C.B. and S.B., three counts of vicarious

      sexual gratification involving C.B., S.B., and S.L., and three counts of battery

      involving C.B., S.B., and S.L. Lewis I, slip op. at 5. The court sentenced Curtis

      to an aggregate term of 128 years and Lewis to an aggregate term of sixty-four

      years. Curtis I, slip op. at 4; Lewis I, slip op. at 6.


[6]   Curtis filed a pro se petition for post-conviction relief on March 7, 2006, and

      amended petitions by counsel in 2007. The post-conviction court denied his

      petitions, and this Court affirmed. See Curtis v. State, 905 N.E.2d 410 (Ind. Ct.

      App. 2009) (“Curtis II”), trans. denied. Lewis filed a petition for post-conviction

      relief in 2007 and an amended petition by counsel in 2008. The post-conviction

      court denied her petition, and this Court affirmed. See Lewis v. State, No.

      45A04-0811-PC-675, slip op. at 2, 4 (Ind. Ct. App. May 13, 2009) (“Lewis II”).

      In both cases, we held that the trial counsels’ decision to stipulate to certain

      pretrial hearsay statements constituted trial strategy. See Curtis II, 905 N.E.2d at

      414-415; Lewis II, slip op at 8-9.


[7]   Without speaking to the children, Curtis prepared affidavits and sent them to

      his brother, Detrick Curtis. Tomeka Johnson, Lewis’s sister and Detrick’s

      girlfriend, sent them back to Curtis. The affidavits signed by S.L., S.B., and

      M.C. state in part that Curtis did not commit any crimes and:


              Various authority figures pressured all of the alleged victims,
              including myself, to give statements against Sedrick Curtis. I
              wanted to please the police, caseworkers, and prosecutors by
              providing the expected answers. That is exactly what I did. I


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 7 of 25
              told those in authority what I thought they expected to hear
              regardless of the truth.


      Respondent’s Exhibits 2, 3A, and 5A. On September 22, 2014, this Court

      authorized the filing of Curtis’s successive petition for post-conviction relief.


[8]   Lewis obtained copies of the affidavits, changed them so that they applied to

      her case, and mailed them to Johnson without personally speaking with any of

      the children to determine what they would say. On April 17, 2015, this Court

      authorized the filing of Lewis’s successive petition for post-conviction relief. In

      October 2015, Curtis and Lewis each filed an amended successive petition for

      post-conviction relief.


[9]   The court held an evidentiary hearing over multiple days in 2016 and 2017.

      C.B. testified that he was twenty-one years old. When asked if he remembered

      living with Lewis and Curtis, C.B. answered: “Not much, to be honest.”

      Transcript Volume I at 35. C.B. indicated that counsel had asked him to watch

      the video interview from when he was maybe five or six years old and that he

      did not watch the whole interview because he became frustrated and does not

      “like to think about my past.” Id. at 38. When asked if he ever saw his parents

      have sex, he answered: “Twice that I can remember.” Id. at 43. When asked if

      he ever saw any movies where there were people having sex, he answered: “I

      think one time in the living room there was a movie, but we were just playing

      around in the living room as kids. I didn’t really understand what was going

      on, so I didn’t watch it; I didn’t pay attention to it much.” Id. at 44. During the


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 8 of 25
direct examination of C.B. by Curtis’s counsel, the following exchange

occurred:


        Q Did either your mother or Mr. Curtis ever perform sex acts on
        you?

        A Not that I can remember. The only sexual things I remember
        were seeing them have sex twice. I don’t remember anything
        else.

        Q Do you – did your parents ever make you perform sex acts
        with your siblings?

        A No.

        Q Do you understand that when you were a child you told
        people that your parents made you commit sex acts with each
        other?

        A Yes, I do.

        Q And with your sisters?

        A Yes, I do.

        Q How do you think that that happened?

        A The only way I could have come up with things like that, I
        mean I had an imagination. As a kid, I had an imagination, then
        you side that with the fact that I’d seen both of my parents have
        sex twice, and then you ask me a bunch of sexual related
        questions, I might not understand that we’re talking about sex.
        But what I’m hearing brings up the image of what I saw. And
        then I try to make sense of the question that I’m being asked
        based off of what I’ve seen and I try to put myself in that
        situation. Basically all I can do is like giving an example,
        honestly, like I’d seen my mother give my father hand jobs. If
        you’re asking me if anybody in my family ever touched my
        bathroom parts – as I guess that’s what I called it as a child – the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 9 of 25
               image that’s going to come to mind is a picture of my mom doing
               that to my dad. I still don’t understand it; it still doesn’t make
               sense why she wouldn’t do that to me. So the best way that I can
               try to make sense of the question is by trying to imagine what it
               would be like if I was in that situation and answer the question
               based off of a visual image that I made up to try to understand
               what was being asked, not off of something that actually
               happened.


       Id. at 44-46. When asked if he was telling the judge that there was no sexual

       abuse, he answered: “Yes, ma’am, I am.” Id. at 48.


[10]   During cross-examination, C.B. testified that, while he was in the second foster

       house following the removal from his mother’s home, there was an incident in

       which he was fourteen years old and was in a sexually compromising position

       with the foster mother’s six-year-old son in which he rubbed against the six-

       year-old’s body. C.B. stated that he was removed from that home and went to

       several different treatment facilities and was in residential treatment for almost

       seven years. He testified that he “got in trouble for grooming the kids around

       me sometimes” or “[d]oing sexual things with kids my age around me.” Id. at

       70.


[11]   When asked if he said he saw his parents have sex twice, he answered: “Yeah, I

       remember seeing it twice. I probably saw it more than that, but I can only

       remember twice.” Id. at 74. He indicated that he was beaten and saw Lewis

       and Curtis use drugs, watch pornography, and masturbate. When asked if he

       remembered the other day when he discussed with the prosecutor how he did

       not remember if M.C. and S.L. lived with him when he was a child, C.B.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 10 of 25
       answered in part: “Yeah. When I think back on my past, I don’t remember.”

       Id. at 79. He indicated that Curtis and Lewis had spent enough time in prison

       and stated “what I’m doing here today is to try and correct a mistake that I

       made.” Id. at 85.


[12]   S.L. testified that she was nineteen years old, that she was removed from Lewis

       and Curtis when she was “[f]our, probably turning five,” and that she did not

       remember making statements that her parents had committed sex acts on her.

       Id. at 104. During the direct examination of S.L. by Curtis’s counsel, the

       following exchange occurred:


               Q Did your parents ever make you commit any sex acts with
               them?

               A I don’t know. I was told that, yes.

               Q Do you have any independent memory of that happening?

               A I don’t have a memory of anything.

               Q You don’t remember the whoopings?

               A The only thing I remember – the only memories I actually
               have are good ones, to be honest.


       Id. at 108. S.L. indicated that she remembered telling counsel that she felt

       brainwashed because “everybody kept telling me stuff that I didn’t remember.”

       Id. at 109. On cross-examination, when asked if she ever read the affidavit, S.L.

       stated “Probably, back in the day,” and, when asked if she thought she signed it

       on March 9, 2015, she answered, “I don’t know,” and later stated, “I don’t


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 11 of 25
       remember. I’ve been doing so much like the past year, I don’t remember.” Id.

       at 120, 122. When asked specifically about the affidavit relating to Curtis, S.L.

       indicated that it was her signature, but when asked if she remembered if she

       read that document, she answered: “Probably not.” Id. at 125. She later

       indicated that she did not remember reading it before she signed it and stated:

       “But I usually read everything before I sign it, so I probably did but I don’t

       remember.” Id. at 126. S.L. testified that she remembered whoopings in which

       Curtis would tap her butt with his hands and that he did not use anything else

       besides his hand that she remembered.


[13]   S.B. testified that she was twenty-one years old, that Lewis and Curtis were her

       parents, and that she was four or five when she was taken from their home.

       During the direct examination of S.B., the following exchange occurred:


               Q Do you recall meeting with myself and co-counsel here, Anne,
               and reviewing a video that was taken of you when you were a
               child?

               A Yes.

               Q When you watched that video, what reaction did you have?
               Do you remember sitting there being interviewed?

               A No, I don’t remember being interviewed. I think my first
               thought was how small I was. But once I got over that, and once
               we got over all the like weird questions, then it started to get to
               the point where she kept asking the same question over and over
               again, I kind of lost interest. Because you know, after hearing the
               same thing over and over again, you kind of get tired of it. But I
               do remember watching the video. I don’t remember the physical



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 12 of 25
        event of the video, because it was so long ago. But the video
        itself was – I just didn’t – I lost interest.

        Q Were those allegations that you made back then, were they
        true?

        A No.

        Q And how do you know that?

        A Something as traumatic as what we said happened, there’s no
        way possible that anybody could ever forget something like that.
        No matter what you do, what you say, how you live your life,
        you will always remember if something that traumatic happened
        to you. There is nothing you can possibly do that can make you
        completely forget something that horrible. Like no type of
        hypnosis, therapy, nothing. Because there’s one small thing that
        will actually jog it back to you. You can’t forget something like
        that, no matter how hard you try.

        Q Has your memory ever been jogged back to that?

        A To being at home, to being with my parents, or to the abuse?

        Q To these things – yeah, to the abuse.

        A No. I remember getting whippings, but who didn’t. We were
        bad, so of course getting whippings I remember. I don’t
        remember any type of sexual anything happening in that house.
        Like the most we ever did, we got whippings. But then again,
        kids our age with our amount of energy, always got whippings.
        But as opposed to the sexual allegations, no. We weren’t even
        allowed to cross sides of the room with our siblings. Although
        we all shared the same room, we could not cross the guys’ side,
        or the guys couldn’t come on the girls’ side. It was just strictly
        enforced. Like you know the rules.

        Q Did – so are you saying today that neither [Lewis] nor [Curtis]
        ever touched you in any sexual manner?

Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 13 of 25
               A No way whatsoever.

               Q Did they ever, in any way, make you touch them in a sexual
               manner?

               A No.

               Q Did they ever make you touch either your sister or your
               brothers in a sexual manner?

               A No.

               Q Did they ever make you do anything sexual while people
               came over and watched?

               A No.

               Q Do you have any idea, you know, why as a child, you might
               have said those things? Because you saw the video, you said
               them. But do you know why you might have, or where you
               might have learned about that?

               A Honestly, I don’t.


       Id. at 175-177. When asked if she ever recalled seeing any type of porn movies

       as a young child, she answered: “One time. One, like five-second view.” Id. at

       206. She indicated that Curtis, Lewis, and her siblings were present.


[14]   On redirect examination of S.B., the following exchange occurred:


               Q And you also said during your testimony that the affidavits
               would reopen the case; that was your understanding?

               A Right.

               Q Why would you want to reopen the case?

               A Because none of the stuff that was said was true.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 14 of 25
       Id. at 216. On recross-examination, S.B. answered affirmatively when asked if

       she was “trying to get your whole family back together,” testified that “this is

       my way of correcting a wrong,” and stated that she felt her parents had spent

       too much time in prison. Id. at 218.


[15]   The State presented the testimony of Taelyn Fowler, a licensed notary. She

       testified that her signature and stamp were on Respondent’s Exhibit 1, the

       affidavit of S.L. as it relates to the case against Lewis, and Respondent’s Exhibit

       4, the affidavit of S.B. as it relates to Lewis. With respect to the affidavits of

       S.L., S.B., and M.C. related to Curtis, Fowler stated that her signature, writing,

       or notary stamp were not on those documents.


[16]   Dr. Michele Cutler, a licensed clinical psychologist, testified that she had

       previously worked with children who had been sexually abused and that

       attachment theory was well-accepted in the psychological community, and she

       talked about the evolutionary drive for children to seek proximity to adults.

       When asked about “trauma bond,” she testified that the most important thing

       that children have is the attachment relationship, that they will do anything to

       try to preserve that caretaking relationship, “even if it means living with, or in

       some way accommodating or accepting the fact that the abuse is hurting – is

       happening – that itself is less anxiety provoking than losing that relationship

       with their primary caretaker, because that’s so innate survival.” Transcript

       Volume II at 212. During the direct examination of Dr. Cutler, the following

       exchange occurred:



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 15 of 25
               Q . . . If there’s recantation not when abuse is ongoing, but years
               later, what might be some reasons for that?

               A Well, the attachment to a primary caretaker, right, the driver
               to preserve that never really goes away. Particularly, as I was
               saying, if we haven’t had the chance to form healthy
               relationships with other caretakers. And over time, separation
               from the original caretakers can actually intensify that bond and
               lead to idealization. So if kids haven’t had the place to hold their
               parents, or caretakers, responsible for what happened and shift
               that blame, then that desire may hold them accountable. That
               desire never really goes away to want to restore that bond with
               their primary caretakers. So an opportunity to do that would
               certainly be less anxiety provoking than acknowledging what had
               happened to them by their primary caretakers.


       Id. at 231-232. Dr. Cutler later stated:


               [J]ust because a child, or even as an adult, later says that they
               don’t remember the abuse happening, doesn’t mean that the
               abuse didn’t happen. That there is other things that could
               contribute to the child – you know, the child who was the victim,
               even if they’re an adult at the time – saying that, other than just
               that the abuse didn’t happen.

       Id. at 239. During the cross-examination of Dr. Cutler, when asked if one of

       the explanations might be that the abuse did not occur, Dr. Cutler answered:

       “Sure.” Transcript Volume III at 5.


[17]   On March 15, 2018, the post-conviction court entered a nineteen-page order

       denying the petitions filed by Curtis and Lewis. In part, the court’s order states:


               31. Three of the four children testified at the SPCR hearings:
               [C.B.], [S.B.] and [S.L.].

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 16 of 25
        32. [M.C.] did not testify at the SPCR hearings. However,
        concerning his affidavit Taelyn Fowler testified that the notary
        signature of her name is not her signature and the notary seal is
        not her seal. (SPCR Respondent’s Exh. 5A). This Court finds
        that Taelyn Fowler did not notarize the affidavit of [M.C.].
        Therefore, the affidavit is not sworn under the penalties for
        perjury before a notary public duly authorized to administer
        oaths.

        33. Although he did not sign an affidavit for either Curtis or
        Lewis, [C.B.] testified at the SPCR hearings. [C.B.] is the oldest
        of the four children. He turned seven years old on June 4, 2001.
        He was removed from the home on August 31, 2001. Although
        his testimony was lengthy, the following portions are of
        particular relevance to the claim of newly discovered evidence
        and ipso facto, actual innocence.

        QUESTION BY [CURTIS’S COUNSEL]:

        Did either your mother or Mr. Curtis ever perform sex acts on
        you?

        ANSWER:

        Not that I can remember. The only sexual things I remember
        were seeing them have sex twice. I don’t remember anything
        else.

        QUESTION BY [CURTIS’S COUNSEL]:

        Do you – did your parents ever make you perform sex acts with
        your siblings?

        ANSWER:

        No.

        QUESTION BY [CURTIS’S COUNSEL]:

        You had to travel to get [to court]?

Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 17 of 25
        ANSWER:

        Yeah, we had to travel; it seemed like it might have been hours.
        It was a big courtroom, a lot of people. Way bigger than this, if I
        remember correctly. And I remember crying a lot; that’s all I
        remember. I remember looking at my mom, seeing my mom’s
        face and realizing that I said some stuff that wasn’t true. And it
        didn’t – it hadn’t occurred to me that I had said stuff that wasn’t
        true until I looked at her, and then I’d just cried a lot.

        QUESTION BY [CURTIS’S COUNSEL]:

        Are you telling the judge today that there was no sexual abuse?

        ANSWER:

        Yes ma’am, I am.

        35. [S.B.] testified at the SPCR hearing. Born in July of 1995,
        she turned six (6) years old three weeks before CPS removed her
        from the home. Like her siblings, [S.B.] was interviewed by the
        Lake County Family Assistance Bureau on November 16, 2001.
        She had started kindergarten. The interview lasted one and one-
        half hours. [S.B.] testified that although she watched the
        interview with Petitioner’s attorneys, she has no memory of the
        interview.

        36. Concerning the affidavit supporting Curtis’s SPCR, [S.B.]
        testified that she did not write the affidavit and did not know
        what it was until her Aunt Tomeka explained it to her. She
        could not testify with any certainty that she read it, testifying
        alternatively that she probably did not read it and later, that she
        probably did read it “back in the day.” Taelyn Fowler testified
        that the notary signature of her name is not her signature and the
        notary seal is not her seal. (SPCR Respondent’s Exh. 3A). This
        court finds that Taelyn Fowler did not notarize the affidavit of
        [S.B.] for Curtis’s case. Therefore, the affidavit is not sworn
        under the penalties for perjury before a notary public duly
        authorized to administer oaths.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 18 of 25
        37. Concerning the affidavit of [S.B.] supporting Lewis’s request
        to pursue SPCR, Taelyn Fowler testified that the notary signature
        of her name is hers and the notary seal is her seal. (SPCR
        Respondent’s Exh. 4). This court finds that Taelyn Fowler
        notarized the affidavit of [S.B.] for Lewis’s case.

        38. When [S.B.] was a teenager, she found some papers
        concerning the criminal case. (Tx. of SPCR, hrg. 1/31/17, p. 17;
        SPCR Petitioner’s Exh. 19). When she spoke with [S.L.] and
        [C.B.] about the case, none of them remembered the events or
        saying any of the things reported. They did not include [M.C.] in
        their discussion because, as [S.B.] put it, “Well, [M.C.] was the
        youngest, so we kind of figured he wouldn’t have any memory of
        it. Plus, we just chose not to expose him to any of that.” (Tx. of
        SPCR, hrg. 1/31/17, pp. 18-21). She testified that the allegations
        she made as a child are not true because something that
        traumatic could not be forgotten – and she has no memory of
        sexual abuse. The affidavit states that [S.B.] said she was
        sexually abused as a child because she was pressured by authority
        figures. However, at the SPCR hearing, when asked why then,
        she said these things as a child, she testified she did not know.

        39. [S.L.] testified at the SPCR hearing. Born in July of 1996,
        she turned five (5) years old two weeks before being removed
        from the home. Concerning the affidavit supporting Curtis’s
        request to pursue successive P-CR, Taelyn Fowler testified that
        the notary signature of her name is hers and the notary seal is
        hers. (P-CR Respondent’s Exh. 1). [S.L.] however, testified that
        didn’t [sic] remember seeing the affidavit and probably didn’t
        read it.

        40. Concerning the affidavit of [S.L.] supporting Lewis’s request
        to pursue SPCR, Taelyn Fowler testified that the notary signature
        of her name is not her signature and the notary seal is not her
        seal. (P-CR Respondent’s Exh. 2). This court finds that Taelyn
        Fowler did not notarize the affidavit of [S.L.] for Lewis’s case.
        Therefore, the affidavit is not sworn under the penalties for
        perjury before a notary public duly authorized to administer
Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 19 of 25
        oaths. Furthermore, [S.L.] testified that she probably didn’t read
        it.

        41. [S.L.] doesn’t know if her parents ever made her commit sex
        acts with them. She was told stuff by other people that she
        doesn’t remember so she feels brainwashed and has questions.

        Conclusions of Law:

                                              *****

        6. None of the children have recanted the statements of sexual
        abuse made over fifteen years ago. [C.B.] testified that the abuse
        did not occur but only after testifying that he has no memory of
        sexual abuse and the only thing he remembers is seeing his
        parents having sex twice. Although he also testified to a
        realization that he “said some stuff that wasn’t true” when he
        saw his mother’s face in the courtroom, this is not an assertion
        that he remembers fabricating the sexual acts he volunteered had
        been committed against him and his siblings. This court
        concludes that the Petitioners have failed to prove that [C.B.] has
        recanted his childhood statements of sexual abuse.

        7. [M.C.] did not testify and his affidavit is invalid at best and
        fraudulent at worst. There is no evidence that he has recanted his
        childhood statements.

        8. [S.B.’s] affidavit for Curtis is invalid at best and fraudulent at
        worst. Furthermore, even in the case of the affidavit prepared in
        support of Lewis’s case, [S.B.] does not adopt the assertions in
        the affidavit as true. For example, the affidavit indicates that she
        said the things she said in order to appease the pressure of
        authority figures. At the SPCR hearing however, she testified
        that she doesn’t know why she described these events as a child.
        She expresses the belief that the affidavits must be true because if
        she had been through something so traumatic as a child, she
        would remember it today. However, she expressed the opinion
        that her brother [M.C.] would not be expected to remember the
        events because of his young age. [S.B.] was five years old during
Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 20 of 25
               the time of the abuse and six years old when interviewed by the
               Family Assistance Bureau. The interview lasted one and one-
               half hours and she watched in preparation of these proceedings
               yet has no memory of it. The evidence proves that [S.B.] does
               not remember being sexually abused. This Court concludes that
               the Petitioners have failed to prove that [S.B.] has recanted her
               childhood statements of sexual abuse.

               9. [S.L.’s] affidavit for Curtis is invalid at best and fraudulent at
               worst. Furthermore, even in the case of the affidavit prepared in
               support of Lewis’s case, young [S.L.] does not adopt the
               assertions in the affidavit as true. By her testimony, she probably
               did not read the affidavit and doesn’t know if her parents
               sexually abused her. This Court concludes that the Petitioners
               have failed to prove that [S.L.] has recanted her childhood
               statements of sexual abuse.

               10. Curtis and Lewis have failed to prove by a preponderance of
               the evidence that newly discovered evidence exists relevant to
               their convictions and sentences.


       Appellants’ Appendix Volume IV at 118-125.


                                                    Discussion

[18]   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); Ind. Post-Conviction Rule 1(5). When appealing

       from the denial of post-conviction relief, the petitioner stands in the position of

       one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On

       review, we will not reverse the judgment unless the evidence as a whole

       unerringly and unmistakably leads to a conclusion opposite that reached by the

       post-conviction court. Id. “A post-conviction court’s findings and judgment

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 21 of 25
       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.” Id. In this

       review, we accept findings of fact unless clearly erroneous, but we accord no

       deference to conclusions of law. Id. The post-conviction court is the sole judge

       of the weight of the evidence and the credibility of witnesses. Id.


[19]   Curtis and Lewis argue that the post-conviction court erred with respect to

       findings 32, 33, 38, and 41, and by failing to consider the full testimony of the

       children. They also argue that the post-conviction court failed to apply the

       proper legal standard to the evidence presented. They assert that the post-

       conviction court was required to evaluate the evidence under a nine-prong

       standard to determine whether it was newly discovered, and that the credible

       recantation of one’s trial testimony by an essential witness will generally satisfy

       all nine prongs of the standard.


[20]   The State argues that Curtis and Lewis have not demonstrated that the post-

       conviction court’s findings were clearly erroneous and that they merely assert in

       part that the findings were incomplete. It asserts “[t]o the extent Petitioners are

       really challenging the post-conviction’s court’s conclusion that ‘None of the

       children have recanted the statements of sexual abuse made over fifteen years

       ago,’ which is actually found in Conclusion #6 . . . that conclusion is not clearly

       erroneous.” Appellee’s Brief at 22. The State argues that direct evidence

       supports the post-conviction court’s conclusion that C.B. testified that “he did

       not remember the sexual abuse rather than made an affirmative recantation of

       the statements he made fifteen years earlier.” Id. at 22-23. It contends that,

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 22 of 25
       “[a]lthough C.B. did also testify more directly at other points that there was no

       sexual abuse, the full context of his testimony shows that his current belief in

       that regard was premised on his lack of memory, not on affirmative

       knowledge.” Id. at 23. It asserts that the evidence supporting the post-

       conviction court’s conclusion that neither S.B. nor S.L. recanted their prior

       statements is even stronger.


[21]   Generally, new evidence will mandate a new trial only when the defendant

       demonstrates that: (1) the evidence has been discovered since the trial; (2) it is

       material and relevant; (3) it is not cumulative; (4) it is not merely impeaching;

       (5) it is not privileged or incompetent; (6) due diligence was used to discover it

       in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon

       a retrial of the case; and (9) it will probably produce a different result at retrial.

       Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000) (citing Fox v. State, 568 N.E.2d

       1006, 1007 (Ind. 1991)). We analyze these nine factors “with care, as ‘[t]he

       basis for newly discovered evidence should be received with great caution and

       the alleged new evidence carefully scrutinized.’” Id. (quoting Reed v. State, 508

       N.E.2d 4, 6 (Ind. 1987)). “The burden of showing that all nine requirements

       are met rests with the petitioner for post-conviction relief.” Taylor v. State, 840

       N.E.2d 324, 330 (Ind. 2006). “Whether a witness’ testimony at a

       postconviction hearing is worthy of credit is a factual determination to be made

       by the trial judge who has the opportunity to see and hear the witness testify.”

       State v. McCraney, 719 N.E.2d 1187, 1191 (Ind. 1999). As to the ninth prong, in

       determining whether newly discovered evidence would likely produce a


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 23 of 25
       different result at a new trial, the post-conviction court may consider the weight

       a reasonable trier of fact would give the evidence and may evaluate the probable

       impact the evidence would have in a new trial considering the facts and

       circumstances shown at the original trial. Nunn v. State, 601 N.E.2d 334, 337

       (Ind. 1992). The newly discovered evidence must raise a strong presumption a

       new trial would achieve a different result. Id.


[22]   To the extent Curtis and Lewis challenge Findings 32, 33, 38, and 41, we note

       that they do not assert that these findings are factually incorrect or that the

       testimony is misquoted. For example, with respect to Finding 32, which found

       that M.C. did not testify at the successive post-conviction relief hearings and

       that M.C.’s alleged affidavit was not sworn under the penalties for perjury

       before a notary public, Curtis and Lewis do not assert that M.C. testified or that

       the trial court’s finding regarding his affidavit was incorrect. While the record

       reveals some statements in the nature of correcting a mistake or denials of some

       conduct, it also reveals a lack of memory on the part of the children. The post-

       conviction court had the opportunity to see and hear the witnesses testify. C.B.

       testified: “When I think back on my past, I don’t remember.” Transcript

       Volume I at 79. When asked if her parents ever made her commit any sex acts

       with them, S.L. answered: “I don’t know. I was told that, yes.” Id. at 108. She

       also stated: “I don’t have a memory of anything.” Id. When asked if she

       remembered the whoopings, she answered: “The only thing I remember – the

       only memories I actually have are good ones, to be honest.” Id. S.B. testified




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 24 of 25
       that she did not remember being interviewed and stated: “I don’t remember the

       physical event of the video, because it was so long ago.” Id. at 175.


                                                    Conclusion

[23]   Any tendency of some of the children’s statements to cast doubt on the

       reliability of the initial evidence would be slight in light of their statements

       regarding their inability to remember. Under the circumstances and in light of

       the record, we cannot say that the evidence as a whole unerringly and

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

       court.


[24]   For the foregoing reasons, we affirm the post-conviction court’s denial of the

       petitions for post-conviction relief filed by Curtis and Lewis.


[25]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-827 | April 23, 2019   Page 25 of 25
