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
                                                           Dec 11 2013, 9:21 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARK SMALL                                        GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  JUSTIN F. ROEBEL
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIE HUGULEY,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 49A02-1305-CR-443
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                        APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Tanya Walton Pratt, Judge
                               Cause No. 49G01-9808-PC-71583



                                       December 11, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

      Appellant-Defendant Willie Huguley appeals his convictions for Class A felony

child molesting, sexual intercourse; Class A felony child molesting, deviate sexual

conduct; and Class C felony child molesting, fondling. Huguley argues that (1) the trial

court committed fundamental error in instructing the jury; (2) Huguley received ineffective

assistance of counsel during his post-conviction relief proceedings; (3) Appellee-Plaintiff

the State of Indiana presented insufficient evidence from which the jury could convict him

of child molesting; and (4) Huguley’s convictions violate Indiana’s proscription against

double jeopardy. We affirm.

                      FACTS AND PROCEDURAL HISTORY

      From January until approximately March of 1998, eleven-year-old N.H. lived with

her maternal uncle Huguley while her mother was in jail. Huguley was approximately

thirty years old at the time. In April of 1998, it was reported to the Marion County

Sherriff’s Department that Huguley had molested N.H. during their time living together.

Following an investigation, the State charged Huguley as follows: Count I, Class A felony

child molesting, sexual intercourse; Count II, Class A felony child molesting, deviate

sexual conduct; and Count III, Class C felony child molesting, fondling. The State later

alleged Huguley to be a habitual offender.

      Huguley was tried by a jury on July 12, 1999, during which N.H. testified to the

following facts. On one occasion, Huguley picked up N.H. from the living room couch,

where she was watching television, and carried her to his bedroom. There, Huguley



                                             2
removed N.H.’s pants, inserted his penis “a little bit” into N.H.’s vagina, and moved up

and down on top of N.H. Tr. p. 261. On a second occasion, Huguley took N.H. to his

bedroom, turned her face down on the bed, and tried unsuccessfully to penetrate N.H.’s

anus with his penis. Huguley then began touching N.H.’s breasts.

        The jury found Huguley guilty as charged, and Huguley subsequently admitted to

being a habitual offender. The trial court sentenced Huguley to forty years each on Counts

I and II and to eight years on Count III. Because of Huguley’s status as a habitual offender,

the trial court enhanced Huguley’s sentence on Count III by ten years. Huguley’s sentences

on Counts I and II were ordered to be served concurrently, but consecutive to his sentence

on Count III, for a total sentence of fifty-eight years.

        Huguley filed a notice of appeal on November 17, 1999, but, on February 15, 2000,

moved to stay the appeal in order to pursue the Davis/Hatton procedure.1 We granted

Huguely’s motion, and he filed a petition for post-conviction relief (“PCR”) on April 12,

2002. In his PCR petition, Huguley claimed ineffective assistance of trial counsel, alleging

counsel failed to investigate certain exculpatory evidence. On February 7, 2003, the post-

conviction court denied Huguley’s petition. Huguley did not timely appeal the judgment



        1
                Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State, 626
       N.E.2d 442 (Ind.1993), establish and recognize that during the pendency of an appeal from
       a conviction, a defendant may have issues which could be the basis for postconviction relief
       in addition to the issues raised on appeal. In such a circumstance, on request, the appellate
       court may terminate the appeal and grant remand so the petition for postconviction relief
       can be heard. If postconviction relief is granted, the issues originally on appeal may be
       mooted and no further appeal is necessary. If postconviction relief is denied, an appeal
       may be taken from the denial and the issues originally raised on appeal may be added to
       the postconviction appeal. See Hatton, 626 N.E.2d at 442.
Huguley v. State, 967 N.E.2d 572, 574 (Ind. Ct. App. 2012), trans. denied.

                                                     3
of the post-conviction court, which was a necessary step in reviving the issues presented in

his stayed direct appeal. Huguley v. State, 967 N.E.2d 572, 574-75 (Ind. Ct. App. 2012),

trans. denied.

       On May 3, 2011, Huguley petitioned this court for belated perfection of his direct

appeal pursuant to Indiana Post-Conviction Rule 2(3). We granted Huguley’s petition but

subsequently remanded the case to the trial court for a determination as to whether Huguley

was at fault in failing to appeal the post-conviction court’s judgment and whether he had

been diligent in pursuing a belated direct appeal. Id. at 575-76. On May 20, 2013,

following an evidentiary hearing, the trial court found that “[Huguley] has been diligent in

pursuing his right to appeal” and granted him leave to file this belated appeal.

                            DISCUSSION AND DESCISION

             I. Whether the Trial Court Committed Fundamental Error

       Huguley argues that the trial court committed fundamental error in instructing the

jury that “a conviction for child molesting may rest solely upon the uncorroborated

testimony of the victim.” Tr. p. 164. We conclude that it did not.

       The “fundamental error” rule is extremely narrow, and applies only when the
       error constitutes a blatant violation of basic principles, the harm or potential
       for harm is substantial, and the resulting error denies the defendant
       fundamental due process.
               When determining whether a defendant suffered a due process
       violation based on an incorrect jury instruction, we look not to the erroneous
       instruction in isolation, but in the context of all relevant information given to
       the jury, including closing argument, and other instructions. There is no
       resulting due process violation where all such information, considered as a
       whole, does not mislead the jury as to a correct understanding of the law.

Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002) (citations and quotation marks


                                              4
omitted).

       This court has previously held that a trial court did not commit fundamental error in

giving a jury instruction nearly identical to the one challenged by Huguley. See Manuel v.

State, 793 N.E.2d 1215 (Ind. Ct. App. 2003). In Manuel, the trial court instructed the jury

that “[a] conviction for child molesting may rest solely on the uncorroborated testimony of

the child witness.” Id. at 1217. On appeal, we determined:

       The instruction and other relevant information … did not mislead the jury as
       to a correct understanding of the law. See Stewart v. State, 768 N.E.2d 433,
       436 (Ind. 2002) (noting that “the uncorroborated testimony of a child victim
       is sufficient to support a conviction for child molesting”). The trial court
       instructed the jury on all elements of the charged offenses, the State’s burden
       of proof, and its role in assessing witness credibility.

Id. at 1218. Here, as in Manuel, the trial court’s instructions as a whole, which included

instructions on the burden of proof and assessing witness credibility, were not misleading

as to a correct understanding of the law.         As such, the trial court did not commit

fundamental error in giving the challenged instruction.

       Huguley relies on the Indiana Supreme Court’s holding in Ludy v. State, that a trial

court erred in instructing the jury that “[a] conviction may be based solely on the

uncorroborated testimony of the alleged victim if such testimony establishes each element

of any crime charged beyond a reasonable doubt.” 784 N.E.2d 459, 460 (Ind. 2003). In

Ludy, however, the Indiana Supreme Court went on to say that its holding “applies to Ludy

and others whose cases properly preserved the issue and whose cases [were then] pending

on direct appeal.” Id. at 462 (citing Pirnat v. State, 607 N.E.2d 973, 974 (Ind. 1993)).

Huguley concedes that he did not object to the challenged jury instruction at trial; therefore,


                                              5
Ludy is inapplicable. See Manuel, 793 N.E.2d at 1218 n.3.2

                   II. Whether Huguley’s PCR Counsel Was Ineffective

        Huguley argues that his PCR counsel was ineffective in failing to assert a claim of

ineffective assistance of trial counsel based on the failure to object to the jury instruction

challenged above. This claim, however, is not properly before this court. Huguley did not

pursue a timely appeal of the post-conviction court’s judgment, and Post-Conviction Rule

2, by which we granted Huguley this belated direct appeal, does not apply to appeals from

post-conviction proceedings. Huguley, 967 N.E.2d at 574; see Taylor v. State, 939 N.E.2d

1132, 1135 (Ind. Ct. App. 2011) (citing Greer v. State, 685 N.E.2d 700, 703 (Ind. 1997)).

Therefore, Huguley is limited to issues of direct appeal, i.e., those arising from his trial and

sentencing, not his PCR proceedings. Additionally, successive post-conviction claims

require appellate court authorization and, if granted, are properly filed and litigated in the

trial court of the petitioner’s conviction. P-C.R. 1(12). Huguley’s claim has not navigated

these procedural channels.

            III. Whether Sufficient Evidence Supports Huguley’s Convictions

        Huguley argues that the State presented insufficient evidence from which the jury

could convict him on Counts I, II, and III.

        It is well established that where a defendant is challenging the sufficiency of
        the evidence to support a conviction, we “neither reweigh the evidence nor
        judge the credibility of the witnesses, and we affirm if there is substantial
        evidence of probative value supporting each element of the crime from which
        a reasonable trier of fact could have found the defendant guilty beyond a

        2
         Given our holding on this issue, we need not determine whether Huguley’s direct appeal, in the
context of the Davis/Hatton procedure, was pending at the time of our Ludy decision.


                                                   6
       reasonable doubt.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005) (quoting
       Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). The factfinder bears the
       responsibility for determining whether the evidence in a given case is
       sufficient to satisfy each element of an offense, and we consider conflicting
       evidence in the light most favorable to the trial court’s ruling. See id.

Prickett v. State, 856 N.E.2d 1203, 1206 (Ind. 2006).

                          A. Sexual Intercourse and Fondling

       With regard to Counts I and III, Huguley claims that the evidence fails to establish

that he engaged in sexual intercourse and fondling with N.H. At trial, N.H. testified that,

on one occasion, Huguley penetrated her vagina with his penis and that, on another

occasion, Huguley touched her breasts.           Huguley contends that this testimony is

inconsistent with other evidence presented at trial, namely, N.H.’s aunt’s testimony that

N.H. said Huguley never touched her. This contention, however, is merely an invitation to

reweigh the evidence, which we will not do. See Pricket, 856 N.E.2d at 1206. N.H.’s

testimony is sufficient to sustain Huguley’s convictions on Counts I and III.

                               B. Deviate Sexual Conduct

       With regard to Count II, Huguley claims that the evidence fails to establish that he

engaged in deviate sexual conduct with N.H. “‘Deviate sexual conduct’ means an act

involving: (1) a sex organ of one (1) person and the mouth or anus of another person[.]”

Ind. Code § 35-41-1-9(1) (1999) (current version at Ind. Code § 35-31.5-2-94(1)). At trial,

N.H. testified, “[Huguley’s] penis touched my bottom.” Tr. p. 266. Huguley contends that

this testimony is insufficient because the statute explicitly requires penile contact with a

person’s “anus,” not merely his or her “bottom” or “buttocks.” See Downey v. State, 726



                                             7
N.E.2d 794, 798 (Ind. Ct. App. 2000) (finding insufficient evidence of deviate sexual

conduct where testimony revealed defendant rubbed his penis against or between victim’s

buttocks). Huguley’s contention, however, ignores that the Prosecutor clarified N.H.’s

testimony:

        [Prosecutor]: [D]o you know what your anus is?
        [N.H.]: Yes.
        [Prosectuor]: Is that what you mean when you say “bottom”?
        [N.H.]: Yes.

Tr. p. 267. N.H.’s testimony is therefore sufficient to support Huguley’s conviction on

Count II.

              IV. Whether Huguley’s Convictions Violate Double Jeopardy

        Huguley argues that his convictions on Counts II and III violate his right to be free

from double jeopardy under the Indiana Constitution.3 Ind. Const., art. I, § 14. Article I,

Section 14 of the Indiana Constitution provides, “No person shall be put in jeopardy twice

for the same offense.”

        [T]wo or more offenses are the “same offense” in violation of Article I,
        Section 14 of the Indiana Constitution, if, with respect to either the statutory
        elements of the challenged crimes or the actual evidence used to convict, the
        essential elements of one challenged offense also establish the essential
        elements of another challenged offense.

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Huguley asserts only an “actual

evidence” challenge to his convictions.



        3
          Huguley also asserts a federal double jeopardy claim but offers no supporting analysis. Pursuant
to Indiana Appellate Rule 8.3(A)(7), this claim is waived; Huguley has failed to provide a cogent argument
with adequate citation to authority. See Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990).


                                                    8
       Huguley claims that N.H.’s testimony failed to establish that the alleged deviate

sexual conduct and fondling occurred at different times. Therefore, Huguley contends,

N.H.’s testimony can only be used to prove one incidence of child molesting. We disagree.

In Ward v. State, we held that a victim’s testimony concerning one episode of child

molesting could be used to prove two separate acts of child molesting without violating

principles of double jeopardy where that testimony revealed that one act of child molesting

was “not contemporaneous with or incidental to” the other. 736 N.E.2d 265, 269 (Ind. Ct.

App. 2000). At trial, N.H. testified that Huguley’s penis touched her anus. This evidence

established the deviate sexual conduct charged in Count II. N.H. further testified that, after

attempting anal penetration, Huguley began touching N.H.’s breasts.           This evidence

established the fondling charged in Count III. See Scott v. State, 771 N.E.2d 718, 730 (Ind.

Ct. App. 2002) (finding no double jeopardy violation where victim testified that defendant

touched her breasts and then penetrated her vagina with his finger), disapproved of on other

grounds by Louallen v. State, 778 N.E.2d 794 (Ind. 2002). Huguley’s convictions on

Counts II and III did not put him in jeopardy twice for the same offense.

       The judgment of the trial court is affirmed.


MATHIAS, J., and PYLE, J., concur.




                                              9
