MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Aug 02 2018, 9:32 am

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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Victoria Christ                                          Ian McLean
Deputy Public Defender                                   Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ricky J. Thurston,                                       August 2, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1710-PC-2279
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Respondent.                                     Judge
                                                         The Honorable Steven Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1103-PC-14461



Robb, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018              Page 1 of 14
                                Case Summary and Issue
[1]   Ricky Thurston appeals the post-conviction court’s denial of his petition for

      post-conviction relief, raising one issue for our review: whether he was denied

      the effective assistance of counsel. Concluding that the post-conviction court’s

      denial of Thurston’s petition for post-conviction relief was proper, we affirm.



                            Facts and Procedural History
[2]   Following a jury trial, Thurston was convicted of rape and criminal

      confinement. The trial court subsequently found that he was an habitual

      offender. Thurston’s convictions were affirmed by this court. Thurston v. State,

      No. 49A02-1204-CR-289 (Ind. Ct. App. Jan. 25, 2013), trans. denied. The facts

      of the offenses were determined on direct appeal as follows:


              On the evening of October 19, 2006, T.K. became involved in a
              heated argument with her husband and her daughter. When
              T.K. realized she was out of cigarettes, she asked her husband for
              the car keys so that she could drive to a nearby service station
              and buy more. T.K.’s husband refused to give her the keys
              because T.K. had been drinking, and T.K. left the house and
              began walking to the service station. T.K.’s husband followed
              her out of the house and for some distance, trying to convince her
              to return. T.K. continued walking, and her husband returned to
              the house. T.K. walked approximately four blocks to the service
              station and purchased cigarettes.


              As T.K. was walking back home, she saw a silver car drive past
              her, stop, turn around, and then drive back to her. The driver
              and sole occupant of the vehicle asked her if she wanted a ride.
              T.K. responded affirmatively and got into the car. The man said
      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 2 of 14
        his name was Troy, that he was twenty-six years old, and that he
        worked in construction. T.K. and the man drove around and
        talked for a while, smoking and drinking from a half-pint bottle
        of whiskey T.K. had taken from her home. When they ran out of
        whiskey, the man drove to a nearby house, which he told T.K.
        belonged to his employer, to get some beer. T.K. waited in the
        car while the man entered the house and emerged with a six-pack
        of beer. He then drove T.K. to a park and stopped the vehicle,
        where they continued to smoke, drink, and talk.


        At some point, T.K. became tired and wanted to go home.
        When T.K. turned to ask the man to take her home, she saw that
        he had pulled his penis out of his pants and was masturbating.
        T.K. immediately demanded to be taken home, and the man
        stated that he wanted to have sex. T.K. said no and again asked
        to be taken home. The man then reached across T.K. and pulled
        a semiautomatic handgun out of the glove compartment. The
        man pressed the muzzle of the gun to the side of T.K.’s head and
        forced her to remove her clothes. T.K., who was experiencing
        symptoms of premature menopause including heavy menstrual
        bleeding, told the man that she was having menstrual problems
        in hopes that it would discourage him from continuing. In
        response, the man ordered T.K. to remove her tampon and throw
        it out of the vehicle. T.K. complied, and then climbed on top of
        the man and submitted to vaginal intercourse while he continued
        to hold the gun to her head.


        When he finished, the man put the gun back into the glove
        compartment and got out of the vehicle to urinate. When the
        man walked out of T.K.’s line of sight, she ran from the vehicle
        and climbed a fence into the backyard of a nearby house, where
        she hid behind a picnic table. T.K. watched as the man returned
        to the vehicle and called her name, and then drove away. T.K.
        then went to the house and knocked on the door. When the
        homeowner answered the door, T.K. asked her to call 911


Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 3 of 14
              because she had been raped. Police responded and an ambulance
              took T.K. to the hospital.


      Id. at *2-4.


[3]   T.K. sustained scratches on her hands and bruising on her right lower

      extremity, her left wrist, and on her inner thigh on both sides. These injuries

      were consistent with climbing over a fence. No traces of seminal material were

      found on T.K.’s body or clothing.


[4]   T.K.’s case was dormant for approximately four years until DNA analysis was

      performed on cigarette butts recovered from the crime scene. One DNA profile

      found as a result of that analysis matched an existing DNA profile of an

      unknown male from an open rape case in Marion County, case IP06051889

      (“case -889”). The DNA results from the cigarette butts were uploaded to a

      statewide database and were found to match Thurston’s DNA. These results

      were confirmed by obtaining a DNA sample from Thurston, who was in

      custody by that time on an unrelated matter.


[5]   On March 2, 2011, the State charged Thurston with rape, a Class A felony, and

      criminal confinement, a Class B felony. Thurston’s jury trial took place on

      February 13 and 14, 2012. The trial court granted Thurston’s motion in limine

      precluding the State and its witnesses from referencing Thurston’s previous

      convictions, pending charges under investigation, or any non-Ashton criminal

      offenses not yet reduced to conviction. Appellant’s Trial Appendix, Volume I




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 4 of 14
      at 56. The trial court’s preliminary instructions included the following in

      relevant part:


              INSTRUCTION NUMBER 1


              ***


              You should focus your attention on the court proceedings and
              the evidence, and reach a verdict based upon what you hear and
              see in this court.


              INSTRUCTION NUMBER 14


              ***


              A defendant must not be convicted on suspicion or speculation.


              ***


              INSTRUCTION NUMBER 17


              . . . You must put your questions in writing. I will review them
              with the attorneys, and I will determine whether your questions
              are permitted by law. If a question is permitted, I will ask it of
              the witness. If it is not permitted, you may not speculate as to
              why it was not asked, or what the answer may have been.


      Id. at 62, 77, 80.


[6]   Shelly Crispin, a serologist and DNA analyst with the Indianapolis Marion

      County Forensic Services Agency (“IMCFSA”), testified for the State regarding


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 5 of 14
      the DNA testing done in this case. During Crispin’s testimony, the trial court

      admitted State’s Exhibit 16, which was a report detailing the results of the DNA

      testing done on the cigarette butts, one of which was labeled “Item 003.001.”

      The report provided the following conclusion regarding that Item:


              The DNA profile from item(s) 003.001 is a mixture with major
              and minor DNA contributors. The source of the partial major
              contributor of DNA is an unknown male. The partial DNA
              profile of the minor contributor is inconclusive.


              The partial DNA profile form the major contributor of item(s)
              003.001 was entered into the IMCFSA DNA Database and was
              found to be consistent with an unknown partial male profile from
              the sperm fraction of item(s) 3.5.1 from [case -889]. The partial
              DNA profile from the major contributor of item(s) 003.001 was
              entered into the Indiana DNA Database and is being maintained
              on file for future searches.


      Exhibit 16, Trial Exhibits, Confidential Volume at 249. Thurston’s defense

      counsel did not object to the admission of Exhibit 16, and the exhibit was

      published to the jury. Crispin did not reference case -889 in her testimony.


[7]   After Thurston’s counsel cross-examined Crispin, the jury submitted questions

      to Crispin, two of which directly concerned the reference in Exhibit 16 to case

      -889. The jury inquired, “What is [case -889]?” and


              Is it fair to say that since the DNA from item 003.001 matched
              Ricky Thurston’s profile, the partial male profile from the sperm
              fraction of item(s) 3.5.1 from [case -889] (referenced in paragraph
              2 of conclusions [in] state’s exhibit 16) is also that of Ricky
              Thurston?

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 6 of 14
      Exhibits B, C, Post-conviction Relief Exhibits, Volume I.1 A juror also asked,

      “How does a person get into the State database?” Exhibit B, PCR Exs., Vol. I.

      It was upon receipt of these jury questions that defense counsel first became

      aware of the reference to case -889 contained in Exhibit 16. Defense counsel

      argued to the trial court that the above-referenced questions should not be asked

      because any reference to the DNA profile in case -889 was irrelevant since it

      was uncontested that Thurston’s DNA matched the DNA profile found in this

      case. The trial court did not ask Crispin the jury’s questions regarding case -889

      or the question pertaining to the database, and it disallowed another question

      relating to T.K.’s clothing. Defense counsel did not seek any admonishment to

      the jury regarding the questions relating to case -889.


[8]   Detective Richard Burkhardt testified after Crispin. Thurston’s videotaped

      statement taken in 2011 was admitted into evidence during Burkhardt’s

      testimony. Thurston denied ever having been at the park, and he denied

      recognizing T.K. when shown a photograph of her taken shortly after the

      offenses. At the close of Burkhardt’s direct testimony, a conversation took

      place outside the presence of the jury regarding which exhibits would be sent

      with the jury into deliberations. Defense counsel argued that the jury should

      not have Exhibit 16 during deliberations because it contained the reference to

      case -889. The State argued that the exhibit had already been admitted into

      evidence without objection and that it was relevant to explain the DNA results



      1
          The individual post-conviction relief hearing exhibits are not paginated.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 7 of 14
      in this matter. The trial court ruled that the jury could have reached a number

      of conclusions regarding the reference to case -889 contained in Exhibit 16 and

      that the reference was not so overwhelmingly explicitly related to the other

      pending rape case that it necessitated the exclusion of the exhibit from

      deliberations. Defense counsel moved for a mistrial based upon his own

      ineffectiveness in failing to notice and address the reference to case -889 in

      Exhibit 16. The trial court denied the motion.


[9]   Prior to deliberations, the trial court reissued its preliminary instructions,

      including Instructions 1, 14, and 17. The trial court’s Final Instruction Number

      27 provided that “Your verdict should be based on the law and the facts as you

      find them. It should not be based on sympathy or bias.” Appellant’s Trial

      App., Vol. I at 90. During deliberations, the jury asked the trial court the

      following question:


              We feel that the jury instructions under 6 and 14 give
              contradictory instructions in this case. This perceived
              contradiction is leading to an impasse in our deliberation. Do
              you have any advice in how to overcome the impasse?


      Trial Transcript, Volume II at 443. Instruction Number 6 pertained to the

      presumption of innocence and the fact that Thurston was not required to

      present any evidence to prove or explain anything. Appellant’s Trial App., Vol.

      I at 69. Instruction Number 14 pertained to the State’s burden of proof and

      provided clarification regarding reasonable doubt. Id. at 77. The trial court

      replied to the question by informing the jury that the instructions were pattern


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 8 of 14
       instructions that should be reread along with all the instructions and that the

       jury should seek a verdict based upon its collective memory of the evidence.

       The jury found Thurston guilty of rape and criminal confinement, and the trial

       court subsequently found that Thurston was an habitual offender.


[10]   After his convictions were affirmed on direct appeal, Thurston sought post-

       conviction relief alleging that his trial counsel had been ineffective for failing to

       note the reference to case -889 in Exhibit 16, failing to prevent its admission

       into evidence at trial, and for failing to mitigate the damage caused by its

       admission. In an affidavit admitted into evidence at the hearing on Thurston’s

       petition for post-conviction relief, defense counsel averred that it was not a

       tactical decision on his part to allow the jury to see the reference to case -889,

       nor to forego an objection to Exhibit 16, nor to forego an admonishment to the

       jury regarding the reference to case-889. Exhibit D, PCR Exs., Vol. I. The

       post-conviction court denied Thurston’s petition for post-conviction relief,

       concluding that Thurston had not been prejudiced by his counsel’s performance

       because the reference to case -889 was isolated and because evidence

       corroborated T.K.’s version of events. Appendix to Brief of Petitioner-

       Appellant, Volume Two at 131-32. The post-conviction court found that

       “[b]eyond mere speculation, there is no basis to find that the single isolated

       reference to the case number affected the jury’s deliberations in any way.” Id.

       at 132. This appeal ensued.



                                  Discussion and Decision
       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 9 of 14
                                      I. Standard of Review
[11]   A petitioner seeking post-conviction relief has the burden of establishing

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

       Rule 1(5). An appeal following the denial of post-conviction relief is an appeal

       from a negative judgment, which may be reversed only if “the evidence as a

       whole leads unerringly and unmistakably to a decision opposite that reached by

       the post-conviction court.” Collins v. State, 14 N.E.3d 80, 83 (Ind. Ct. App.

       2014). “We defer to the post-conviction court’s factual findings, unless they are

       clearly erroneous.” Id.


                         II. Ineffective Assistance of Counsel
[12]   It is well-established that the right to counsel provided in the Sixth Amendment

       guarantees the right to the effective assistance of counsel. Strickland v.

       Washington, 466 U.S. 668, 686 (1984). In order to establish a claim of

       ineffective assistance of counsel, a defendant must show (1) that counsel’s

       performance was deficient such that it fell below an objective standard of

       reasonableness based on prevailing professional norms, and (2) that the

       defendant was prejudiced by his counsel’s deficient performance. Id. at 687.


[13]   Both prongs of the Strickland test need not be addressed if a defendant has not

       met his burden of proof as to one prong. See id. at 697 (“If it is easier to dispose

       of an ineffectiveness claim on the ground of lack of sufficient prejudice

       . . . that course should be followed.”). A defendant is sufficiently prejudiced if,

       but for his counsel’s errors, there is a reasonable probability that the result of the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 10 of 14
       proceeding would have been different. Id. at 694. “A reasonable probability is

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


[14]   Here, we conclude that we need not address the quality of the representation

       provided by Thurston’s trial counsel because we cannot conclude that the

       evidence is unerringly and unmistakably contrary to the post-conviction court’s

       conclusion that Thurston was not prejudiced by his counsel’s alleged errors.

       Thurston argues that his credibility before the jury was irreparably harmed by

       the reference to case -889 in Exhibit 16 because the jury “was unlikely to believe

       his consent argument after they learned he was a suspect in another case where

       his DNA matched a ‘sperm fraction[.]’” Brief of Petitioner-Appellant at 30.

       The single reference at issue here is to “an unknown partial male profile from

       the sperm fraction of item(s) 3.5.1 from [case -889].” Trial Exs., Confidential

       Vol. at 249.


[15]   We acknowledge that a reference to a sperm fraction has the potential to be

       more problematic in a rape case than it might in a case where another type of

       offense, such as a property or financial crime, is alleged. However, in this case,

       the nature of a “sperm fraction” or how Thurston’s sperm fraction may have

       been obtained by the State was not elaborated upon or explained to the jury.

       There was no evidence before the jury as to the nature of case -889 or

       Thurston’s role in that case, let alone that he was a suspect. As such, while the

       reference to case -889 may have permitted an inference of prior misconduct, it

       was too vague as to the nature of any prior criminal activity to support the

       forbidden inference that Thurston must have raped T.K. because he had been

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 11 of 14
       accused of raping another. See Hinesley v. State, 999 N.E.2d 975, 986 (Ind. Ct.

       App. 2013) (noting the difference between evidence which creates a mere

       inference of prior misconduct and evidence that is prohibited by Indiana

       Evidence Rule 404(b)), trans. denied.


[16]   The quality and quantity of the reference at issue here is what distinguishes this

       case from Thompson v. State, 15 N.E.3d 1097 (Ind. Ct. App. 2014), cited by

       Thurston in support of his claim of prejudice. See Br. of Petitioner-Appellant at

       26-27. In Thompson, the investigating detective testified that he linked

       Thompson to the victim’s rape because Thompson was also a suspect in

       another sexual assault, and the detective testified at length about the similarities

       in the two cases. Thompson, 15 N.E.3d at 1101. Such direct and detailed

       evidence regarding another sexual assault case in which the defendant had been

       identified as a suspect is a far cry from the isolated and ambiguous reference at

       issue here.


[17]   Thurston’s claim of prejudice is also undermined by the trial court’s instructions

       to the jury. The trial court’s preliminary instructions provided that the jury

       must base its verdict on the evidence it received during trial and that it could

       not convict Thurston based upon speculation. Although the jury asked

       questions about the reference to case -889 contained in Exhibit 16, the trial

       court did not pose those questions to Crispin, and the jury had been instructed

       that it was not to speculate why any of its questions had gone unasked or what

       the answers to its questions might have been. The jury was reminded of these

       directives as part of the trial court’s final instructions, and the trial court further

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 12 of 14
       instructed the jury to base its verdict on the facts and the law, not on sympathy

       or bias. A jury is presumed to follow a trial court’s instructions. Carpenter v.

       State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied. Thurston’s

       speculation as to what the jury could have concluded from the reference to case

       -889 and his attempts to draw conclusions from the jury’s impasse question, see

       Br. of Petitioner-Appellant at 23-26, do not overcome the presumption that the

       jury followed the trial court’s instructions to base its verdict only on the

       evidence presented at trial and not upon speculation about its unanswered

       questions.


[18]   Thurston contends that the reference to case -889 must have prejudiced him

       sufficiently to undermine confidence in the outcome of his trial because this

       case rested purely upon the jury’s credibility assessments of him and T.K. See

       Br. of Petitioner-Appellant at 24. We disagree. T.K.’s version of events was

       not entirely without corroboration. T.K. sustained documented injuries

       climbing over a fence fleeing from Thurston, which was inconsistent with

       Thurston’s theory of the case that T.K. consented to having sex with him. In

       addition, the jury heard Thurston’s initial claim to investigators that he had

       never been to the park where his DNA was recovered, and it heard his initial

       claim not to recognize T.K., a woman with whom his counsel argued Thurston

       had consensual sex. Although this evidence is not overwhelming, neither was

       the reference at issue here. Given the vagueness of the isolated reference at

       issue, the trial court’s instructions to the jury, and the other evidence presented

       at trial, our confidence in the jury’s verdict is not undermined. The post-


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 13 of 14
       conviction court’s conclusion that Thurston was not prejudiced by his counsel’s

       performance was not clearly erroneous. Collins, 14 N.E.3d at 83.



                                               Conclusion
[19]   Concluding that Thurston was not denied the effective assistance of counsel

       and that the post-conviction court’s denial of relief was proper, we affirm.


[20]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2279 | August 2, 2018   Page 14 of 14
