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                          Apr 24 2013, 8:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

BRYAN LEE CIYOU                                   GREGORY F. ZOELLER
LORI B. SCHMELTZER                                Attorney General of Indiana
Ciyou & Dixon, P.C.
Indianapolis, Indiana                             BRIAN REITZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DENNIS BARNETT,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A02-1207-PC-610
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Kurt M. Eisgruber, Judge
                        The Honorable Steven J. Rubick, Magistrate
                            Cause No. 49G01-0809-PC-207709



                                        April 24, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Dennis Barnett appeals the post-conviction court’s denial of his petition for post-

conviction relief. Barnett raises two issues for our review, which we restate as the

following single issue: whether Barnett was denied a fair trial due to alleged juror

misconduct.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The facts underlying Barnett’s convictions were stated by this court in his direct

appeal:

       During the summer of 2008, seven-year-old A.S. played with her friend S.,
       who lived nearby. S. lived with her mother, her grandmother, and her
       grandfather, Barnett, who was born on December 13, 1949. A.S. would
       play on the computer while sitting in Barnett’s lap. While A.S. was playing
       on the computer with Barnett, he “just started touching [A.S.] in wrong
       places” or “[b]ad places that you’re not supposed to touch” or “private
       spots.” Transcript at 20-21. Barnett touched her “[a]lmost everyday” in
       her “private part” that she uses to go to “the bathroom.” Id. at 21-22.
       Barnett always touched A.S. on the inside of her underwear and “would just
       like put his hand” in the front of her pants “and just left it there.” Id. at 24.
       Sometime Barnett”s hand went on the inside of A.S.’s “private spot,” which
       hurt A.S. Id. at 25. At one point, Barnett also put his hand on the backside
       of A.S.’s “private part” or the part that she uses to “go number . . . two.”
       Id. at 29. A.S. told Barnett to stop, and Barnett said, “no, I'm a grown up. I
       can do what I want.” Id. at 26-27.

              A.S. eventually told her grandmother, who called the police. Barnett
       gave a statement to Indianapolis Police Detective Chris Lawrence.

Barnett v. State, 916 N.E.2d 280, 282 (Ind. Ct. App. 2009), trans. denied (“Barnett I”).

       The State charged Barnett with two counts of child molesting, as Class C felonies.

The jury found Barnett guilty as charged. The trial court entered judgment of conviction

accordingly and, on March 20, 2009, it sentenced Barnett to three years with forty-four
                                              2
days executed and the remainder suspended for the first count of child molesting and

three years with the entire sentence suspended on the second count of child molesting, to

be served consecutively. The trial court also placed Barnett on “sex offender probation

for 6 years, zero tolerance.” Id. at 284. On appeal, we affirmed Barnett’s convictions.

Id. at 287.

       On March 3, 2011, Barnett filed a verified petition for post-conviction relief (“the

petition”). In the petition, he alleged that his conviction was “procured by juror deceit”

because

       Juror April Tillberry did not honestly answer Juror questionnaire, questions
       on voir dire, and on the trial court’s questions in Mr. Barnett’s case. Juror
       Tillberry had extensive knowledge of the case, personal relationship with
       the [victim’s] family (victim and her parents), and was the girlfriend of the
       victim’s father’s best friend. Had Juror Tillberry disclosed this, she would
       have been challenged for cause and not allowed to sit on the jury.

Appellant’s App. at 39. The petition also alleges that, after his appeal in Barnett I,

Barnett learned that Juror Tillberry had “attended a ‘conviction party’ at the [victim’s]

home after [Barnett] was convicted on March 11, 2009.” Id. As such, Barnett alleged

that it was “inconceivable [that] Juror April Tillberry was not then [at the time of trial],

and is not now, biased against Mr. Barnett and [that] lying to the Court did not prejudice

his right to a fair weighing of the facts by the jury.” Id. at 41. On those grounds, Barnett

sought a new trial.

       On November 29, 2011, the post-conviction court held a hearing on Barnett’s

petition, and on July 2, 2012, the court issued its order denying the same (“Order”). The

Order included findings of fact and conclusions thereon, which provide in relevant part as

follows:
                                             3
                           FINDINGS OF FACTS

                                     ***

6.      The Court held an evidentiary hearing on November 29, 2011.
[Barnett] presented testimony from Brenda McGinley who is a private
investigator that he hired; [Barnett] additionally presented testimony from
April Tillberry, who was a juror in his original trial. [Barnett] entered into
evidence a deposition of April Tillberry, a transcript of a phone call
between Brenda McGinley and April Tillberry, and the transcript of the
voir dire conducted in this case.
7.      On its behalf, the State presented testimony from Preston Faulkner,
who was in a relationship with April Tillberry at or near the time of the trial
in this case. At the State’s request, the Court took judicial notice of its file
in this matter.
8.      For the reasons discussed below, the Court finds that the facts are
with the State and against [Barnett].

                         CONCLUSIONS OF LAW

                                     ***

2.      Juror Misconduct
        In support of his petition, [Barnett] contends that that [sic] he should
receive a new trial because one of the jurors was a friend of the father of his
victim, and that juror had prior knowledge of the allegations in this case.
“In certain circumstances, ‘[t]he failure of a juror to disclose a relationship
to one of the parties may entitle the prejudiced party to a new trial.’”
Stephenson v. State, 864 N.E.2d 1022, 1055 (Ind. 2007) (citations omitted)
(alteration in original), cert. denied, __ U.S. __[,] 128 S. Ct. 1871, 170 L.
Ed. 2d 751. “To obtain a new trial based on a claim of juror misconduct,
the defendant must demonstrate that the misconduct was gross and likely
harmed the defendant.” Id. Further, the defendant must present specific
and substantial evidence establishing that a juror was possibly biased, id.,
and that this bias [“]probably harmed the defendant.” Dickenson v. State,
732 N.E.2d 238 (Ind. App. 2000), trans. denied; Roberts v. State, 894
N.E.2d 1018, 1022 (Ind. App. 2008). “The issue of juror misconduct is a
matter within the trial court’s discretion.” Lopez v. State, 527 N.E.2d 1119,
1130 (Ind. 1988).
        Here, [Barnett] claims that juror April Tillberry committed gross
misconduct because he believes she had an undisclosed prior relationship
with the victim’s family and prior knowledge of the facts of the case.
[Barnett] bases his claims on reports of a pretextual phone conversation that
Brenda McGinley had with Ms. Tillberry, on an abortive deposition of Ms.
                                       4
      Tillberry, and based on a subjective interpretation of selected portions of
      Ms. Tillberry’s and Mr. Faulkner’s testimony at the evidentiary hearing.
              Ms. Tillberry’s demeanor towards the Court was appropriate but in
      regards to questions put to her during the evidentiary hearing she was at
      times circumspect. It is possible that her demeanor during the evidentiary
      hearing was indicative of the fact she was hiding something, but it is just as
      likely that her behavior was the natural reaction of a person whose integrity
      is under attack. Standing alone, the curious demeanor displayed at the
      evidentiary hearing is insufficient to support the logical leap that Ms.
      Tillberry committed juror misconduct or had advance knowledge of the
      case. Ms. Tillberry testified she did not know the victim or the victim’s
      father, [J.S.], prior to the trial and there is no evidence before the Court to
      contradict this testimony; [Barnett’s] investigator described an earlier
      phone conversation that might have cast doubt on this testimony but the
      Court has only the subjective memory of the private investigator because
      the first phone[ ]call was not recorded[. I]n the absence of a transcript of the
      earlier call, Ms. Tillberry’s sworn testimony is the best evidence before the
      Court and is sufficient to rebut [Barnett’s] claims.
              The Court finds Ms. Tillberry’s testimony that she was not aware of
      any personal connection with [the victim’s father] until sometime after her
      participation as a juror, when she learned that her boyfriend had known the
      victim’s father, is dispositive. There is no independently verifiable
      evidence to contradict this testimony.
              The Court finds that Preston Faulkner’s testimony is also credible.
      Mr. Faulkner acknowledged that he and April Tillberry have had a
      longstanding personal relationship. Mr. Faulkner testified that he knew [the
      victim’s father] in school but has had only minimal contact with [the father]
      since high school. Mr. Faulkner testified that he and April Tillberry had
      not socialized with [the victim’s father] prior to trial, and had not discussed
      the facts of the case prior to her service as a juror. Again, there is no
      independently verifiable evidence to contradict his claim.
              The Court finds that Ms. Tillberry’s statements about [the victim’s
      father] in her pretextual conversation with Ms. McGinley are ambiguous
      and do not provide adequate evidentiary support for [Barnett’s] claims.
      The Court is without the benefit of the first pretextual conversation between
      Ms. McGinley and Ms. Tillberry and will not accept [Barnett’s] subjective,
      second-hand interpretation of the conversation. In the second phone call,
      recorded on January 27, 2011, Ms. Tillberry clearly indicated that she had
      not known [the victim’s father] for very long, and had only met him once.
      These statements provide no evidence or support for the claim that as of the
      March 11,2 009[,] trial in this case, Ms. Tillberry had any relationship with
      the victim or her family.

App. at 74-78.
                                             5
                             DISCUSSION AND DECISION

       Barnett asserts that the post-conviction court erred when it denied his petition for

relief. Our standard of review from the post-conviction court’s denial of a petition for

post-conviction relief is well settled:

       The petitioner in a post-conviction proceeding bears the burden of
       establishing grounds for relief by a preponderance of the evidence. Ind.
       Post-Conviction Rule 1(5). When appealing the denial of post-conviction
       relief, the petitioner stands in the position of one appealing from a negative
       judgment, Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004), and we will not
       reverse the judgment unless the evidence unerringly and unmistakably
       leads to the opposite conclusion, Patton v. State, 810 N.E.2d 690, 697 (Ind.
       2004). We also note that the post-conviction court in this case entered
       findings of fact and conclusions of law in accordance with Indiana Post-
       Conviction Rule 1(6). We will reverse a post-conviction court’s findings
       and judgment only upon a showing of clear error, which is that which
       leaves us with a definite and firm conviction that a mistake has been made.
       Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). Such deference is not given
       to conclusions of law, which we review de novo. Chism v. State, 807
       N.E.2d 798, 801 (Ind. Ct. App. 2004).

Taylor v. State, 882 N.E.2d 777, 780-81 (Ind. Ct. App. 2008).

       Further:

       Postconviction procedures do not afford a petitioner with a super-appeal,
       and not all issues are available. Rouster v. State, 705 N.E.2d 999, 1003
       (Ind. 1999). Rather, subsequent collateral challenges to convictions must
       be based on grounds enumerated in the postconviction rules. P C.R. 1(1);
       Rouster, 705 N.E.2d at 1003. If an issue was known and available, but not
       raised on direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was
       raised on appeal, but decided adversely, it is res judicata. Id. (citing
       Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)). If not raised on
       direct appeal, a claim of ineffective assistance of trial counsel is properly
       presented in a postconviction proceeding. Woods v. State, 701 N.E.2d
       1208, 1215 (Ind. 1998). A claim of ineffective assistance of appellate
       counsel is also an appropriate issue for postconviction review. As a general
       rule, however, most free-standing claims of error are not available in a
       postconviction proceeding because of the doctrines of waiver and res
       judicata.


                                             6
Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001).

       Barnett contends that he was denied his Sixth Amendment right to a fair trial

because of alleged juror misconduct.         Any person who has been convicted of, or

sentenced for, a crime by a court of this state, and who claims . . . that the conviction or

the sentence was in violation of the Constitution of the United States or the constitution

or laws of this state” may petition for post-conviction relief. Ind. Post-Conviction Rule

1(1)(a)(1). Barnett first learned of the alleged juror bias after his direct appeal, when he

heard that Tillberry had attended a post-conviction party at the victim’s house and had

previously been acquainted with the victim’s father. And a claim of juror misconduct

may be proper grounds for post-conviction proceedings. Wilkes v. State, No. 10S00-

1004-PD-185, at *5 (Ind. April 4, 2013). Thus, Barnett’s claim is properly before us in

post-conviction proceedings because it was not known or knowable at the time of his

direct appeal. See Pitman v. State, 635 N.E.2d 1098, 1100 (Ind. Ct. App. 1994). See also

Stephenson, 864 N.E.2d at 1054-55 (alleging bias of juror due to acquaintance with

victim’s sister, discovered after direct appeal, as basis for post-conviction relief).

       Our supreme court described juror misconduct in Stephenson as follows:

       The right to a jury trial includes “a fair trial by a panel of impartial,
       indifferent jurors.” Turner v. Louisiana, 379 U.S. 466, 471, 85 S. Ct. 546,
       13 L. Ed. 2d 424 (1965). In certain circumstances, “[t]he failure of a juror
       to disclose a relationship to one of the parties may entitle the prejudiced
       party to a new trial.” Godby v. State, 736 N.E.2d 252, 256 (Ind. 2000)
       (citing Haak v. State, 275 Ind. 415, 417, 417 N.E.2d 321, 326 (1981). To
       obtain a new trial based on a claim of juror misconduct the defendant must
       demonstrate that the misconduct was gross and likely harmed the
       defendant. Id. Furthermore, the defendant must present “specific,
       substantial evidence” establishing that a juror was possibly biased. Guyton
       v. State, 771 N.E.2d 1141, 1145 (Ind. 2002) (quoting Lopez v. State, 527
       N.E2d 1119, 1130 (Ind. 1988)).
                                               7
864 N.E.2d at 1054-55 (some citations omitted).

       Here, Barnett contends that he was denied an impartial jury at his trial on child

molesting charges because Tillberry was acquainted with the victim’s father and did not

disclose that fact to the trial court when jurors were asked during voir dire whether they

knew or were familiar with the victim or her father. But, as the post-conviction court

found, Tillberry denied ever having met the victim’s father and testified that she had

remembered he was acquainted with her then boyfriend, Faulkner, only after the trial had

concluded. Barnett points to Tillberry’s incomplete deposition testimony and a private

investigator’s pretextual telephone conversations with Tillberry to show that Tillberry

had known the victim’s father even before the trial.

       But because the first telephone call from the investigator to Tillberry was not

recorded, the only evidence supporting Barnett’s claim with regard to that call was the

subjective memory of the investigator. Thus, the court found that, in the absence of a

transcript of the first telephone call, Tillberry’s testimony was the best evidence of that

call and was “sufficient to rebut [Barnett’s] claims.” Appellant’s App. at 77. And

although Tillberry said in the second call that she had spoken to the victim’s father, that

conversation with him took place well after the trial, in response to the investigator’s first

telephone call. The transcript of that call does not show when Tillberry first met or knew

of the victim’s father and is ambiguous at best regarding Tillberry’s acquaintance with

the victim’s father. Based on our review of the record on appeal, we cannot say that the

post-conviction court clearly erred in reaching that conclusion.



                                              8
       Barnett has not shown that the post-conviction court clearly erred when it found

no juror misconduct by Tillberry. As such, he cannot show prejudice. Because Barnett

has not demonstrated juror misconduct, he has not shown that the post-conviction court

should have granted his petition for post-conviction relief.

       We affirm.

BAILEY, J., and BARNES, J., concur.




                                             9
