MEMORANDUM DECISION
                                                                 Jul 24 2015, 10:32 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

Lloyd E. Sally                                            James B. Martin
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

James E. McGee,                                           July 24, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          45A03-1411-PC-397
        v.                                                Appeal from the Lake Superior
                                                          Court
                                                          Cause Nos. 45G02-1206-PC-8,
State of Indiana,                                         45G02-0907-FA-29
Appellee-Respondent                                       The Honorable Kathleen A.
                                                          Sullivan, Magistrate
                                                          The Honorable Clarence D. Murray,
                                                          Judge




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015      Page 1 of 18
                                           Case Summary
[1]   James E. McGee (“McGee”) appeals the denial of his petition for post-

      conviction relief, which challenged his convictions for Child Molesting. 1 We

      reverse and remand for retrial.



                                                     Issue
[2]   McGee presents the issue whether he was denied the effective assistance of trial

      counsel because counsel failed:


            (a) to present evidence or make an offer of proof as to a prior false

                 molestation accusation and the delusional symptoms of the complaining

                 witness; or

            (b) to object to voluminous instances of bolstering testimony and evidence of

                 uncharged misconduct in another jurisdiction.



                                   Facts and Procedural History
[3]   The facts underlying McGee’s conviction were recited by a panel of this Court

      on direct appeal:

                 McGee was an Illinois police officer who lived in Indiana. B.D., a
                 minor, is the daughter of McGee’s cousin, Laquita Hughes. B.D. and
                 her family lived in Harvey, Illinois, and McGee would often stop by




      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 2 of 18
              their house. B.D. would also frequently visit McGee’s house in
              Indiana, as McGee’s daughter is approximately the same age as B.D.
              B.D. testified that, on one of these visits to Indiana when she was nine
              years old, she was sleeping on the couch and McGee “came and set
              [sic] at the end of my feet and he started rubbing in between my legs.”
              Tr. 103. She further testified that McGee put his hands “on my
              vagina” and “rubbed it” for about two minutes. Tr. 104-105. On
              another visit, when she was twelve, B.D. was riding with McGee and
              her younger brother in McGee’s van. McGee dropped B.D.’s younger
              brother off at the Boys and Girls Club for a basketball tournament, and
              then pulled his van into a vacant lot. B.D. testified that, in the lot,
              McGee forced B.D. to have vaginal sex with him. B.D. recounted that
              on another occasion, also in McGee’s van, McGee forced B.D. to
              “suck on him.” On another visit, according to B.D., McGee made
              B.D. play with his penis, and he ejaculated on the steering wheel.
              On July 30, 2009, the State charged McGee with two counts of child
              molesting as a Class A felony, and one count as a Class C felony. A
              jury trial was held, and, on March 19, 2010, the jury found McGee
              guilty on all three charges. Because of double jeopardy concerns, the
              trial court entered a judgment of conviction only as to Counts I and II,
              and sentenced McGee to forty years imprisonment for each Class A
              felony count, to be served concurrently.
      McGee v. State, No. 45A04-1007-CR-413, slip op. at 1 (Ind. Ct. App. Feb. 11,

      2011), trans. denied. On direct appeal, McGee challenged the sufficiency of the

      evidence to support his convictions, alleged fundamental error in jury

      instruction and trial court bias, and claimed that his sentence was inappropriate.

      His convictions and sentence were affirmed. Id. at 6.


[4]   On June 26, 2012, McGee filed a pro-se petition for post-conviction relief.

      With the assistance of the Indiana Public Defender, McGee filed an amended

      petition for post-conviction relief alleging ineffectiveness of trial counsel. Post-

      conviction hearings were conducted on April 16 and 17, 2013. On October 23,


      Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 3 of 18
      2014, the post-conviction court issued its findings of fact, conclusions, and

      order denying McGee post-conviction relief. This appeal ensued.



                                 Discussion and Decision
                                          Standard of Review
[5]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); 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. On review, we will not reverse

      the judgment of the post-conviction court 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 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,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded 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.


                                  Effectiveness of Trial Counsel
[6]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

      Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

      of ineffective assistance under the two-part test announced in Strickland. Id. To


      Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 4 of 18
      prevail on an ineffective assistance of counsel claim, a defendant must

      demonstrate both deficient performance and resulting prejudice. Dobbins v.

      State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

      Deficient performance is that which falls below an objective standard of

      reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

      1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

      “there is a reasonable probability that, but for counsel’s unprofessional errors,

      the result of the proceeding would have been different. A reasonable

      probability is a probability sufficient to undermine confidence in the outcome.”

      Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

      1996). The two prongs of the Strickland test are separate and independent

      inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice … that course

      should be followed.” Id.


[7]   We “strongly presume” that counsel provided adequate assistance and

      exercised reasonable professional judgment in all significant decisions. McCary

      v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

      considerable discretion in the choice of strategy and tactics. Timberlake v. State,

      753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

      facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

      1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

      reasonable professional judgment even if the strategy in hindsight did not serve

      the defendant’s interests. Id. In sum, trial strategy is not subject to attack

      Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 5 of 18
      through an ineffective assistance of counsel claim, unless the strategy is so

      deficient or unreasonable as to fall outside the objective standard of

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


[8]   McGee claims that his trial counsel was ineffective because he did not

      effectively challenge the complaining witness’s credibility or preserve

      appropriate issues for appellate review. More specifically, although trial

      counsel knew that B.D.’s father had claimed she had a propensity to lie and had

      identified a prior molestation accusation that he considered to be false, trial

      counsel did not develop a corresponding defense. He did not depose B.D.’s

      father or provide notice of intent, pursuant to Indiana Evidence Rule 412, to

      present evidence of a prior false accusation. Although counsel knew that B.D.’s

      accusation against McGee had been made during her hospitalization at a

      psychiatric facility, counsel did not present evidence that B.D. had, at that time,

      been diagnosed as suffering from a non-specific psychosis. Nor did counsel

      present evidence that B.D. had insisted to her family and the hospital staff that

      she was pregnant despite medical evidence to the contrary, while showing

      another patient’s ultrasound photograph as her own. Finally, counsel made no

      objection as B.D., her family members, a welfare caseworker, and law

      enforcement personnel testified at length regarding uncharged misconduct

      allegedly committed by McGee.


[9]   Trial counsel John Cantrell (“Cantrell”) testified at the post-conviction hearing,

      identifying the theory of defense as an attack upon B.D.’s credibility. In

      particular, Cantrell believed that he had held “a smoking gun” because B.D.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 6 of 18
       had reported that McGee had a mole on his penis and no such mole was visible

       in the State’s photographic exhibits. (P.C.R. Tr. at 22.) In light of the physical

       evidence contradicting B.D.’s description, counsel did not pursue other

       evidentiary avenues.


[10]   Cantrell asserted that he “would not violate motions in limine” and “could not

       substantiate” a prior false accusation of molestation. (P.C.R. Tr. at 30, 33.) He

       claimed that it had been a strategic decision to “allow all evidence of uncharged

       allegations from Illinois into the record” because it was preferable to “attack

       everything with inconsistent stories … than just one in East Chicago [Indiana].”

       (P.C.R. Tr. at 56, 64.) At the same time, he intended to “not allow bolstering if

       he could keep it out.” (P.C.R. Tr. at 49.) As for investigating the substance of

       the testimony as to uncharged misconduct, Cantrell conceded that he had not

       deposed B.D.’s family members but “thought” he had spoken to B.D.’s father

       “in the hall.” (P.C.R. Tr. at 70.)


[11]   With regard to B.D.’s delusional pregnancy, Cantrell explained that the trial

       court had accused him of attempting to circumvent rape shield law. He

       appeared to be convinced that he could not challenge a ruling in limine,

       insisting impeachment was to be conducted “within the court’s motion [sic] in




       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 7 of 18
       limine” and he could not “touch” its scope on cross-examination. (P.C.R. Tr.

       at 83.)2


[12]   Appellate counsel Mark Bates (“Bates”) testified that he had been hindered in

       his presentation of issues for appeal. According to Bates, evidentiary issues had

       not been preserved for review by timely objections or offers of proof in the trial

       court. Bates testified that he could discern no strategic reason for the admission

       of uncharged misconduct in Illinois, in light of Indiana Evidence Rule 404(b).


[13]   In denying McGee post-conviction relief, the post-conviction court concluded

       that Cantrell had “valiantly sought” to admit the purported prior false

       allegation of molestation and could not be found ineffective “simply because

       the court ruled against his position.” (App. 89.) The post-conviction court also

       concluded that trial counsel’s failure to make an offer of proof with regard to

       B.D.’s medical records was not prejudicial, in that the records included no

       specific diagnosis of a delusional disorder. With regard to uncharged

       misconduct, the post-conviction court stated in relevant part:

                Cantrell testified that he believed the best defense was to question B.D.
                regarding the prior bad acts. Cantrell testified that B.D.’s story was
                unbelievable especially since B.D. claimed the molesting happened so
                many times, with so many people in close proximity, yet never
                resulted in a police investigation. Cantrell stated that it was more
                plausible for a jury to believe a two time event where the victim



       2
         We observe that the trial court specifically advised counsel to the contrary. At the pre-trial hearing
       addressing motions in limine, the trial court clarified: “Obviously these are Motions in Limine. All these
       issues are going to be revisited during the trial, and I may change my ruling. These are preliminary rulings as
       we all know.” (Tr. at 30.)

       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015               Page 8 of 18
               recounted specific details, rather than numerous events which basically
               lead to nothing. The strategy was to highlight all of the occasions to
               show the jury how implausible the story was, and to categorize B.D. as
               a liar. This Court should not and will not second guess counsel’s
               strategy and tactics.
       (App. 88.)


                           Prior Accusation of Sexual Misconduct
[14]   Prior to trial, Cantrell was provided with a statement B.D.’s father had made to

       Detective Edward Rodriquez of the East Chicago Police Department. The

       statement included references to a prior accusation by B.D.:

               The reason why we didn’t make out a report [in this case] was because
               basically [B.D.] she’s known to lie a lot, so we kind of didn’t go into
               the motions of it, and because we used to have a handy man around
               the house. She accused him of touching her. She came and told that
               incident, she said that he touched her. He came down and she came
               down and he said you can call the police because I never touched your
               daughter. This was the handy man saying this, his name is Ollie, I
               don’t know his last name. So [B.D.] admitted that he never touched
               her.
       (P.C.R. Exhibit 3.) McGee now argues that Cantrell should have presented

       evidence of the prior accusation after requesting a hearing to demonstrate that

       the prior accusation was admissible as an exception to Indiana’s rape shield

       evidentiary exclusions. In turn, the State argues that McGee has failed – even

       after a post-conviction hearing at which evidence was presented – to show that

       a demonstrably false prior accusation was made.


[15]   Indiana Evidence Rule 412, the Rape Shield Rule, incorporates the basic

       principles of Indiana Code § 35-37-4-4 and reflects a policy that inquiry into a


       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 9 of 18
       victim’s prior sexual activity should not become a focus of the defense. State v.

       Walton, 715 N.E.2d 824, 826 (Ind. 1999). Rule 412 is designed to preclude

       evidence of a complaining witness’s prior sexual conduct; however, evidence of

       prior false accusations of rape made by a complaining witness does not

       constitute “prior sexual conduct” for rape shield purposes. Id. False

       accusations constitute verbal conduct, not sexual conduct. Id. Thus, a

       defendant may offer evidence of prior false accusations of rape to impeach the

       credibility of a witness without running afoul of the Rape Shield Rule. Id. at

       827.


[16]   Evidence of prior false accusations of rape or sexual misconduct may be

       admitted if (1) the complaining witness admits he or she made a prior false

       accusation; or (2) the prior accusation is demonstrably false. Hall v. State, No.

       49S05-1412-CR728, slip op. at 12, n.10 (Ind. 2015). In Hall, the complaining

       witness had, according to her mother’s report in a recorded telephone

       conversation, falsely accused a boy in another state of sexual misconduct.

       Nonetheless, when the mother was deposed by defense counsel, she refused to

       discuss the incident in detail; the trial court refused to compel her cooperation.


[17]   A panel of this Court reversed Hall’s conviction, concluding that the trial court

       abused its discretion when it denied Hall’s motion to compel the complaining

       witness’s mother to answer the deposition question regarding a prior false

       accusation of sexual misconduct. Hall v. State, 15 N.E.3d 1107, 1121 (Ind. Ct.

       App. 2014). On transfer, our Indiana Supreme Court ultimately concluded that

       the discovery ruling was harmless error. In reaching this conclusion, however,

       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 10 of 18
       the Court observed that the mother’s response could have revealed potentially

       relevant information and stated that “the trial court should have granted Hall’s

       motion to compel discovery in order to fully secure his Sixth Amendment right

       to confront witnesses against him. Hall, slip op. at 12-13.


[18]   Like the defendant in Hall, McGee would have been entitled to explicit

       exploration of the circumstances surrounding B.D.’s complaint to her parent of

       prior sexual misconduct, which the parent rejected as false. We would expect

       reasonably competent counsel to pursue this avenue. It may be that the identity

       of the accused could have been revealed from clues known to B.D.’s father; it

       may be that the accusation could have been shown to be demonstrably false.

       However, as the State points out, the accusation has not been disproved and

       thus we cannot ascertain whether McGee was prejudiced by his trial counsel’s

       omission. B.D.’s father did not testify at the post-conviction hearing and no

       other evidentiary record was developed to shed light upon whether the prior

       accusation was indeed false. We cannot reach a conclusion of ineffectiveness of

       counsel based upon speculation.


                                           Psychiatric Records
[19]   In May of 2009, B.D. was admitted to a psychiatric facility, Hartgrove Hospital.

       The intake assessment included reports from B.D.’s guardian, Laquita Hughes,

       that B.D. was suicidal, a chronic runaway, reportedly pregnant, and “saying the

       baby was moving in her stomach.” (App. 186.) B.D. was preliminarily

       diagnosed with an unspecified psychosis. After testing revealed that B.D. was


       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 11 of 18
       not pregnant, she continued to insist that she was pregnant, even displaying an

       ultrasound photograph apparently stolen from another patient. After B.D. was

       treated for major depression, Hughes expressed concern to hospital staff that

       B.D. was “still delusional and not ready to be discharged.” (App. 274.) McGee

       argues that B.D. was delusional at the time she accused McGee of sexual

       misconduct, presenting a significant challenge to her credibility that Cantrell

       failed to develop. The State argues that McGee was not prejudiced because the

       impeachment value of the records was minimal; B.D. had not received a

       specific diagnosis of a delusional disorder.


[20]   In a pretrial hearing, the State opposed the admission of B.D.’s psychiatric

       records, contending that references to pregnancy ran afoul of the Rape Shield

       Rule. Cantrell responded that the pregnancy references were not evidence of

       past sexual conduct because B.D. was not in fact pregnant; rather, she was

       delusional. The trial court agreed with the State, advising defense counsel:

       “We’ll cross that bridge when we get to it, counsel. She hasn’t taken the stand

       yet, so I don’t know what you will be able to impeach her on.” (Tr. at 15.)

       After the close of the State’s case-in-chief, defense counsel again argued for

       admission of B.D.’s redacted psychiatric records. The trial court excluded the

       records and defense counsel withdrew the proffered exhibits without making an

       offer of proof.


[21]   A history of mental problems “at the time of the incidents so that [a witness’s]

       ability to recall the facts they were testifying about might be questionable” may

       be admissible for impeachment purposes. Witte v. State, 516 N.E.2d 2, 5 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 12 of 18
       1987). However, counsel will not be found ineffective for failure to impeach by

       means of psychiatric records that are only “marginally relevant.” Wesley v.

       State, 788 N.E.2d 1247, 1252 (Ind. 2003).


[22]   Here, we conclude that the records have greater than marginal relevance. At

       the time B.D. reported McGee’s conduct, she was hospitalized and suffering

       from depression. Her preliminary diagnosis was that of non-specific psychosis.

       Although the diagnosis did not specifically reference a delusional disorder, her

       intake assessment indicated significant symptomology that would likely cause a

       reasonable factfinder to reflect upon B.D.’s perception of reality. After a

       negative pregnancy test and psychiatric treatment, B.D. continued to insist that

       she was pregnant. In a documented pregnancy “fixation,” B.D. presented

       another patient’s ultrasound as evidence of her own pregnancy. (App. at 249.)


[23]   We recognize that defense counsel attempted to introduce redacted psychiatric

       records and encountered opposition with regard to whether admission would

       violate the Rape Shield Rule. Like false accusations of sexual misconduct, false

       reports of pregnancy concern verbal conduct. Disproving a claim of pregnancy

       does not introduce evidence of the complaining witness’s past sexual behavior.

       Nonetheless, defense counsel could not have compelled the trial court to reach

       this conclusion at trial. However, he fell short of reasonable professional norms

       when he failed to make an offer of proof and preserve the issue for appellate

       review. Given the severity of B.D.’s symptoms, the timing of her allegations

       against McGee, and the inconsistencies in her statements to medical personnel,

       McGee was denied the opportunity to present a significant challenge to B.D.’s

       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 13 of 18
       credibility. This issue could have been presented on direct appeal given an offer

       of proof. The omission was prejudicial.


                              Evidence of Uncharged Misconduct
[24]   McGee was charged with molesting B.D. in the State of Indiana. At McGee’s

       trial, B.D., each of her parents, and her sister Camesha Dowell (“Dowell”)

       testified to uncharged events occurring in the State of Illinois. Defense counsel

       did not object to the testimony, purportedly preferring to defend against all

       accusations from any source as opposed to those alleged in the charging

       informations.


[25]   The admission of evidence of uncharged bad conduct is constrained by Indiana

       Rule of Evidence 404(b), which provides in relevant part as follows:

               Evidence of other crimes, wrongs, or acts is not admissible to prove the
               character of a person in order to show action in conformity therewith.
               It may, however, be admissible for other purposes, such as proof of
               motive, intent, preparation, plan, knowledge, identity or absence of
               mistake or accident.
[26]   Evidence of extrinsic offenses poses the danger that the jury will convict the

       defendant because he is a person of bad character generally, or has a tendency

       to commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). The

       rationale for the prohibition against bad act and character evidence is

       “predicated upon our fundamental precept that every defendant should only be

       required to defend against the specific charges filed.” Oldham v. State, 779

       N.E.2d 1162, 1173 (Ind. Ct. App. 2002), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 14 of 18
[27]   B.D. testified that McGee came to her Illinois home “just about every day” and

       would – at that home – touch her breasts and vagina. (Tr. at 102.) More

       specifically, B.D. testified:

               He comes to my house in Illinois to visit me, and not just to visit me, it
               was like every day just about every day thing, so every time he sees
               me, he either rub over my clothes or outside my clothes, or he put his
               finger in my vagina or he rubs it or something.
       (Tr. at 107). B.D. also stated that McGee “was licking on my vagina … in my

       house in the living room [in Harvey, Illinois].” (Tr. at 113.) In corroboration,

       Dowell testified to seeing something “questionable” in Illinois when she came

       downstairs and saw B.D. “jump and move” but then both McGee and B.D.

       pretended to be asleep. (Tr. at 174-75.) Both Hughes and Davis testified that

       their daughter, Dowell, had become alarmed and called her mother at work to

       report her suspicions.


[28]   On cross-examination of Dowell, defense counsel elicited clarifying details of

       the feigned sleep event and also established that McGee had access to B.D. in

       the kitchen, because he would ask her for drinks and then follow her. Likewise,

       during cross-examination of Hughes, defense counsel invited her to provide

       clarifying details of the events related to her in Dowell’s telephone call.


[29]   In sum, defense counsel elected to acquiesce when multiple witnesses revealed

       uncharged misconduct and then he elicited more detailed descriptions on cross-

       examination. Moreover, on one occasion, defense counsel initially introduced

       evidence of his client’s uncharged bad act. During cross-examination of B.D.,

       the following exchange took place:

       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 15 of 18
                Defense Counsel: You previously testified that James had handcuffed
                you to your bed and felt all of your body, is that right?
                B.D.: Yes.
       (Tr. at 132.) The prosecutor then objected that there had been no such prior

       testimony, and defense counsel insisted that he was conducting appropriate

       cross-examination based upon a deposition.3 The trial court sustained the

       prosecutor’s objection; no limiting instruction was requested.


[30]   In light of the lengthy and detailed testimony from multiple witnesses regarding

       uncharged events, it is evident that defense counsel stood silently by (and

       occasionally assisted) as the “fundamental precept” that McGee should defend

       against only “the specific charges filed” was violated. Oldham, 779 N.E.2d at

       1173. We find this to be both deficient and prejudicial.


                                            Bolstering Testimony
[31]   At the post-conviction hearing, defense counsel testified that his intent was to

       keep out testimony that would improperly bolster B.D.’s credibility. The trial

       record belies his success in this regard. Voluminous corroborative hearsay

       evidence was admitted, without objection from the defense.


[32]   Child services investigator Vashona Mack (“Mack”) was invited to read to the

       jury her report of “just the things that [B.D.] tells you and you write down.”

       (Tr. at 374.) The document read to the jury included B.D.’s statements to Mack




       3
         In a side bar conference, defense counsel indicated that he was “trying to get in the fact that everybody was
       in the house.” (Tr. at 133.)

       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015               Page 16 of 18
       that: McGee had “touched her” from age nine until twelve; McGee exposed

       his penis and B.D. “played” with it; McGee kissed B.D.’s breasts; while B.D.

       slept, McGee would “start feeling on her”; McGee placed his penis on B.D.’s

       face and tried to push her head toward it; McGee ejaculated onto a steering

       wheel; when B.D. was thirteen, McGee “started feeling her” in Illinois; McGee

       handcuffed B.D. to a bed; McGee placed his mouth on B.D.’s vagina; McGee

       would place B.D.’s hands on his penis; and McGee had never “penetrated”

       B.D. or attempted penetration. (Tr. at 375-76.)


[33]   As a result of a question propounded by a juror – to which Cantrell failed to

       object – Hughes was asked to describe “what B.D. told her” regarding the

       occurrence near the Boys and Girls Club. In her testimony, B.D. had explained

       that McGee had pulled down her panties and “forced hisself” [sic] on her. (Tr.

       at 108.) Hughes’ recitation of hearsay provided increased detail:

               He told her to touch him, and she touched him, and he just told her he
               wanted to put the head in. And she said when he first did it, it hurted
               (sic) and then she said he told her it’s going to ease it, just give it a
               minute, and that’s when they had sex.”
       (Tr. at 331.) Again, the acquiescence to bolstering testimony is both deficient

       performance and prejudicial.


[34]   Counsel is to be afforded discretion in matters of strategy and tactics.

       Timberlake, 753 N.E.2d at 603. That said, counsel’s performance must

       ultimately be such that the defendant has not been denied a fair trial.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 17 of 18
[35]   Here, counsel consciously elected to have his client defend against all

       allegations of his misconduct toward B.D., not just those charged in the

       informations. Although he anticipated that evidence of uncharged misconduct

       in Illinois would be introduced into evidence, he did not depose or interview

       family members to ascertain the particulars of their anticipated testimony. He

       did not request a hearing to determine the admissibility of evidence the State

       alleged to be in violation of the Rape Shield Rule. He appeared to

       misapprehend his role as advocate, opining that he could not challenge rulings

       in limine during the trial. He failed to make an offer of proof with respect to

       B.D.’s psychiatric records, although aware that she had appeared delusional

       during her hospitalization. He did not lodge appropriate objections to hearsay

       testimony, no matter how damaging. He elicited testimony from the victim

       regarding an uncharged act of confinement by handcuffing. In light of the

       foregoing, we conclude that McGee has established deficient performance and

       resulting prejudice.



                                               Conclusion
[36]   McGee was denied the effective assistance of trial counsel. Accordingly, he is

       entitled to post-conviction relief. We remand for re-trial.


[37]   Reversed and remanded.


       Riley, J., and Barnes, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015   Page 18 of 18
