MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Mar 14 2016, 5:40 am
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
Kelly A. Kelly                                          Ian McLean
Deputy Pubic Defender                                   Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA


Christopher Sutton,                                     March 14, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        01A05-1507-PC-882
        v.                                              Appeal from the Adams Circuit
                                                        Court
State of Indiana,                                       The Honorable Chad E. Kukelhan,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        01C01-1201-PC-1



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016        Page 1 of 10
                                Case Summary and Issue
[1]   Following a jury trial, Christopher Sutton was convicted of child molesting as a

      Class A felony. He subsequently filed a petition for post-conviction relief

      alleging ineffective assistance of counsel. During the course of post-conviction

      proceedings, Sutton served the State with four proposed Non-Party Requests for

      Production of Documents and Subpoenas Duces Tecum pursuant to Indiana

      Trial Rule 34(C). The requests were directed at four medical providers and

      sought the child victim’s medical records. The State objected to the requests.

      The post-conviction court sustained the State’s objection but certified the matter

      for interlocutory appeal. We accepted jurisdiction. Concluding the post-

      conviction court’s ruling will not prejudice Sutton’s ineffective assistance claim,

      we affirm the post-conviction court’s order quashing Sutton’s subpoenas.



                            Facts and Procedural History
[2]   Many of the facts relevant to Sutton’s conviction were recounted by this court

      on direct appeal:

              Seven-year-old Z.H. lived with her mother S.C, her three-year
              old brother, and thirty-two-year-old Sutton. S.C. and Sutton had
              lived together for “about 2, 2 years,” and Z.H. called Sutton
              “daddy.” On July 8, 2008, Z.H. and her brother were in bed
              with S.C. and Sutton. Z.H. had an issue with wetting herself at
              night and wore a pull-up diaper. S.C, who is a sound sleeper, did
              not hear Sutton leave the next morning.

              S.C. woke up around 7:00 a.m., and Z.H. was already awake.

      Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 2 of 10
        Z.H. went into the bathroom and her mother told her to take off
        her clothes so that she could take a bath. Z.H. told S.C. that her
        vagina hurt. S.C. told Z.H. that she “probably peed [her] pants,
        um go ahead and take your clothes off you’ll be fine,” and Z.H.
        stated “no mom my vagina hurts because . . . daddy stuck his
        penis in my vagina.”

        Without talking to Z.H. about what had happened, S.C. called
        her mother. S.C.’s mother and sister arrived, and her sister called
        the police. Later that day, Danielle Goewert of the Fort Wayne
        Child Advocacy Center interviewed Z.H. and the interview was
        recorded. Z.H. informed Goewert that Sutton put his penis in
        her vagina the previous night. Z.H. stated that Sutton was asleep
        because his eyes were closed. Z.H. stated that Sutton’s penis
        touched her pull-up diaper and that her pull-up diaper went into
        her vagina. Z.H. also stated that her brother once smacked her in
        her vagina.

        After her interview, Z.H. was examined at the Fort Wayne
        Sexual Assault Treatment Center by Sharon Robinson, the chief
        administrative officer and a sexual assault nurse examiner.
        Robinson asked Z.H. what had happened to her, and Z.H. stated
        that her “daddy put his penis inside [her] vagina and that he
        pushed [her] pull up inside with his penis . . . .” Robinson
        observed Z.H.’s “internal female sex organ” and “her labia
        minera,” which she described as [“]really dark red . . . .”
        Robinson also observed petechiae, which is “pin point bruising,”
        on Z.H.’s labia minera and above her urethra.

        When Sutton arrived home, Berne Police Detective James
        Newbold identified himself to Sutton and asked him if he would
        come to the police department with him. Sutton said that he
        would and asked if he was going to jail. During the interview,
        Detective Newbold told Sutton that the interview related to the
        fact that Z.H. had told her mother that her vagina hurt. Sutton
        stated that Z.H. had complained about her vagina hurting for
        probably the last year. Detective Newbold asked Sutton if there

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 3 of 10
        was a particular reason why Z.H.’s vagina would be hurting, and
        Sutton stated that over the weekend Z.H. complained that she
        had been hurt on the “swings or something,” but Z.H.’s aunt
        checked her and determined that she was only scratched. Sutton
        denied placing his penis in Z.H.’s vagina. When asked why Z.H.
        would say that he had placed his penis in her vagina, Sutton
        stated that he is erect in the mornings and that he must roll over
        Z.H. to exit the bed but that his penis did not touch her. Sutton
        also indicated that he attempts to be sure that he is “clear” of the
        children and is “careful” because he knows the children are
        usually in the bed.

        ***
        On July 14, 2008, the State charged Sutton with child molesting
        as a class A felony. On December 29, 2008, the State filed a
        notice of intent to introduce Z.H.’s statement at trial pursuant to
        Ind. Code § 35-37-4-6, the Protected Persons Statute, and later
        filed amended notices. On January 5, 2009, the State filed an
        amended information for child molesting as a class A felony. On
        June 16, 2009, the court held a protected person hearing on the
        State’s motion, which Sutton attended. Sutton’s counsel
        questioned Z.H. Barbara Gelder, a psychologist at the Center for
        Neuro-Behavioral Services, testified that she had previously met
        Z.H., reviewed her medical file, and believed that Z.H. would
        suffer harm by testifying. On June 23, 2009, the court entered an
        order concluding that Z.H. was a protected person, was
        unavailable to testify at the trial, and was made available for and
        was cross-examined by defense counsel during the protected
        person hearing.


Sutton v. State, No. 01A05-1002-CR-75, 2010 WL 5386318, at *1-2 (Ind. Ct.

App. Dec. 21, 2010) (citations omitted), trans. denied. At trial, the State offered

into evidence a recording of Z.H.’s interview at the Child Advocacy Center, as

well as Z.H.’s testimony from the protected person hearing. Both exhibits were


Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 4 of 10
      admitted and played for the jury. S.C. testified that “Z.H. stated that her vagina

      hurt because Sutton ‘stuck his penis in [her] vagina.’” Id. at *2. Sutton also

      testified and denied touching Z.H. in a sexual manner.


[3]   The jury found Sutton guilty of child molesting as a Class A felony, and the

      trial court sentenced Sutton to forty-five years in the Department of Correction,

      with five years suspended. Sutton appealed his conviction, arguing the trial

      court erred in admitting Z.H.’s out-of-court statements and portions of Sutton’s

      interview with Detective Newbold. Finding no reversible error, we affirmed

      Sutton’s conviction, and our supreme court denied his petition to transfer.

      Sutton subsequently filed a petition for post-conviction relief alleging ineffective

      assistance of counsel. Relevant here, Sutton contends in his petition,

              [T]rial counsel failed to conduct an adequate pre-trial
              investigation and therefore failed to discover and present . . .
              medical evidence (including evidence of a playground incident
              the day before the date when Sutton was alleged to have
              molested Z.H.) that could have been used to show that the
              physical injuries and emotional impairment of Z.H. were not
              caused by Sutton . . . .


      Appendix to Brief of Petitioner-Appellant at 14.


[4]   On December 11, 2014, Sutton served the State with four proposed Non-Party

      Requests for Production of Documents and Subpoenas Duces Tecum pursuant

      to Indiana Trial Rule 34(C). The requests were directed at four different

      medical providers and sought “[a]ll medical records” or “[a]ll medical records

      and/or counseling records” for Z.H. dated through July 2008. Id. at 57-74.

      Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 5 of 10
      The State filed an objection to the requests on December 16, 2014. The State

      maintained Sutton was “not entitled to a second opportunity to discover the

      same evidence that he could have discovered prior to trial” and further objected

      because Sutton failed to state “why all of the victim’s medical and counseling

      records from the victim’s birth through July 2008 are relevant or necessary.” Id.

      at 49-50. Sutton filed a response to the State’s objection, arguing the victim’s

      medical records are discoverable under Indiana Trial Rule 26 and relevant to

      his petition for post-conviction relief because trial counsel should have reviewed

      such records in order to rule out alternative explanations for the victim’s

      injuries:

               Counsel has consulted with Dr. Steven R. Guertin, MD, at
               Sparrow Children’s Center in Lansing, Michigan about Sutton’s
               case. After a review of case materials, Dr. Guertin opined that
               the medical condition of the victim could have resulted from
               something other than an incident of molestation. Specifically,
               the scattered petechiae and redness/swelling could have been
               caused by aggressive masturbation, straddle injury, streptococcal
               disease and/or lichen sclerosis et atrophicus.


      Id. at 53.1


[5]   At a hearing held on February 6, 2015, the State argued the issue was already

      litigated at trial because the nurse who conducted Z.H.’s sexual assault




      1
       Lichen sclerosis et atrophicus is a chronic skin disease characterized by the eruption of flat white hardened
      papules. Merriam-Webster Online Medical Dictionary, http://www.merriam-
      webster.com/medical/lichen%20sclerosus%20et%20atrophicus (last visited Mar. 3, 2016).

      Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016               Page 6 of 10
      examination testified “the only cause” of Z.H.’s injuries was “[p]enetrati[on]

      inside her female sex organ.” Transcript of Trial at 353. The nurse found

      Z.H.’s injuries to be consistent with Z.H.’s account of the molestation and

      explained to the jury why she believed the injuries were caused by penetration

      as opposed to external blunt force trauma or diaper rash. The nurse also

      testified that she obtained Z.H.’s medical history prior to conducting the

      examination: “prior hospitalizations, any medicines that she currently [was] on,

      any medical conditions that she has.” Id. at 341. The nurse completed a

      medical history form, which lists attention deficit hyperactivity disorder and

      epilepsy as Z.H.’s previous medical history, but she did not offer specific details

      about Z.H.’s medical conditions when she testified at trial.


[6]   Sutton, by counsel, argued Dr. Guertin would be unable to form an opinion

      without additional information about the victim’s medical history, but Sutton

      conceded he did not know the extent to which such records were previously

      discovered. Post-conviction counsel could not locate Sutton’s file, and trial

      counsel could not remember the specifics of the case. Post-conviction counsel

      was consulting the State’s file, which contained some medical records but none

      that referenced the victim’s “official diagnosis.” Transcript of Hearing at 5.


[7]   Following the hearing, the post-conviction court issued an order sustaining the

      State’s objection. Sutton filed a motion to certify the matter for interlocutory

      appeal pursuant to Indiana Appellate Rule 14(B). The post-conviction court

      certified its order quashing Sutton’s subpoenas on June 19, 2015, and we

      accepted jurisdiction over the appeal on August 7, 2015.

      Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 7 of 10
                                Discussion and Decision
                                      A. Standard of Review
[8]   “Post-conviction proceedings are civil proceedings in which the defendant must

      establish his claims by a preponderance of the evidence.” Wilkes v. State, 984

      N.E.2d 1236, 1240 (Ind. 2013). The proceedings are “governed by the same

      rules ‘applicable in civil proceedings including pre-trial and discovery

      procedures.’” Id. at 1251 (quoting Ind. Post-Conviction Rule 1(5)). Post-

      conviction courts are given broad discretion in ruling on discovery matters,

      however, and we affirm their determinations absent a showing of clear error

      and resulting prejudice. Id.


[9]   Sutton’s petition for post-conviction relief alleges he received ineffective

      assistance of trial counsel. To establish a claim of ineffective assistance of

      counsel, a defendant must demonstrate (1) counsel’s performance was deficient,

      and (2) the deficient performance prejudiced the defense. Strickland v.

      Washington, 466 U.S. 668, 687 (1984). Counsel’s performance was deficient if it

      fell below an objective standard of reasonableness based on prevailing

      professional norms. Id. at 688. Likewise, a defendant is prejudiced by counsel’s

      deficient performance only if “there is a reasonable probability that, but for

      counsel’s unprofessional errors, the result of the proceeding would have been

      different.” Id. at 694. “A reasonable probability is a probability sufficient to

      undermine confidence in the outcome.” Id.




      Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 8 of 10
                                   B. Z.H.’s Medical Records
[10]   Sutton contends he may have a viable claim for ineffective assistance of counsel

       because trial counsel possibly failed to investigate Z.H.’s medical history. Sutton

       argues he is now entitled to discover Z.H.’s medical records because the records

       may contain information that could provide an alternative explanation for Z.H.’s

       injuries. In the event the victim’s records did contain this sort of information,

       Sutton argues trial counsel would have presented the information to the jury had

       he known of the records, which could have resulted in Sutton’s acquittal.


[11]   Under the particular facts and circumstances presented here, we cannot say the

       post-conviction court’s ruling will result in prejudice to Sutton’s ineffective

       assistance claim. See Wilkes, 984 N.E.2d at 1251. Even assuming Z.H.’s

       medical records contain information that could provide an alternative

       explanation for Z.H.’s injuries, this evidence would not show counsel failed to

       adequately investigate, nor would it establish a reasonable probability that the

       result of the proceeding would have been different. See Strickland, 466 U.S. at

       694. As explained above, post-conviction counsel could not locate Sutton’s file,

       and trial counsel could not remember the specifics of Sutton’s case. And in

       light of the testimony of the sexual assault nurse, who ruled out alternative

       explanations, as well as Z.H.’s disclosure of the abuse, we cannot say an

       alternative medical explanation would undermine our confidence in the

       outcome of Sutton’s trial.




       Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 9 of 10
[12]   Absent clear error and resulting prejudice, we do not disturb a post-conviction

       court’s discovery rulings. Wilkes, 984 N.E.2d at 1251. We see no resulting

       prejudice here and accordingly must affirm the post-conviction court’s order

       quashing Sutton’s subpoenas.



                                               Conclusion
[13]   The post-conviction court’s ruling will not prejudice Sutton’s ineffective

       assistance claim because evidence supporting an alternative medical

       explanation for Z.H.’s injuries would demonstrate neither deficient

       performance, nor prejudice to the defense sufficient to undermine confidence in

       the outcome of Sutton’s trial. We therefore affirm the post-conviction court’s

       order quashing Sutton’s subpoenas.


[14]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016   Page 10 of 10
