MEMORANDUM DECISION                                                  Feb 05 2016, 8:53 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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                           Gregory F. Zoeller
Plainfield, Indiana                                       Attorney General of Indiana
                                                          Karl M Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Keith Hoglund,                                            February 5, 2016

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          90A02-1503-PC-182
        v.                                                Appeal from the Wells Circuit Court
                                                          The Honorable Jeffrey Todd, Special
State of Indiana,                                         Judge
                                                          Cause No. 90C01-1209-PC-6
Appellee-Respondent.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016      Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Keith Hoglund (Hoglund) appeals the post-conviction

      court’s denial of his petition for post-conviction relief.


[2]   We affirm.


                                                     ISSUE

[3]   Hoglund raises one issue on appeal, which we restate as: Whether Hoglund’s

      trial counsel provided effective assistance.


                           FACTS AND PROCEDURAL HISTORY

[4]   The facts, as set forth in Hoglund’s direct appeal, are as follows:

              Hoglund and Teresa Mallot (Mallot) were married in June 1998.
              At that time, Mallot was the mother of a four-year-old son from a
              prior relationship. Two daughters were born to the marriage,
              A.H. in 1998 and a sister in 2001. In June 2002[,] the family
              moved from Fort Wayne to a home in Wells County. A.H. was
              four years old at the time. When A.H. was about five years old,
              she told Mallot about an incident in which Hoglund had taken a
              shower with her. An upset Mallot confronted Hoglund; he
              denied the allegation and Mallot at first believed him. In
              February 2006[,] a tearful eight-year-old A.H. again told Mallot
              about possible sexual abuse. This time Mallot reported the
              incident to a detective with the Wells County Sheriff’s
              department. The detective questioned A.H. who told him,
              among other things, that Hoglund “put stuff on his penis and
              ha[d] her lick it off.” Hoglund was arrested an on May 4, 2006,
              he was charged with two [C]ounts of child molesting as Class A
              felonies. At trial, then twelve-year-old A.H. testified that
              Hoglund first began molesting her when she was four years old.

      Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 2 of 13
              Hoglund would cause her to fellate him approximately two or
              three times per week. And this lasted until after A.H.’s seventh
              birthday. Hoglund would rub flavored substances onto his penis
              and occasionally ejaculate into A.H.’s mouth. Hoglund also
              showed A.H. a pornographic movie depicting oral sex, told her
              that her mother viewed her with disgust and cared more for her
              siblings than her, promised to give her money and toys, and told
              her that she would be “covered in black and blue” and that he
              would go to jail if she told anyone. After A.H. told Hoglund that
              she no longer wanted to fellate him, she asked him if he would
              ever force her younger sister to fellate him, and Hoglund
              responded, “I don’t know, maybe.”
              The State called as expert witnesses pediatrician Carol Butler,
              clinical psychologist Amanda Mayle, and mental health
              counselor Christine Shestak. Each witness had treated or
              counseled A.H. in varying degrees of specificity, each witness
              essentially testified that A.H. was “not prone to exaggerate or
              fantasize” concerning sexual matters.
              They jury found Hoglund guilty on both [C]ounts of child
              molesting as Class A felonies. Apparently due to double
              jeopardy concerns the trial court sentenced Hoglund to a term of
              fifty years on Count I only. Hoglund appealed contending the
              testimony of the expert witnesses constituted impermissible
              vouching evidence. He also argued that based on his character
              and the nature of the offense a fifty-year sentence was
              inappropriate. In a divided opinion, the Court of Appeals
              rejected both claims and affirmed the trial court’s judgment.
      Hoglund v. State, 962 N.E.2d 1230, 1232 (Ind. 2012) (internal references and

      footnote omitted).


[5]   Our supreme court granted transfer. In its opinion, the court reaffirmed its

      adherence to the Indiana Rules of Evidence with respect to the testimony of

      child victims of abuse and held that “testimony concerning whether an alleged


      Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 3 of 13
      child victim ‘is not prone to exaggerate or fantasize about sexual matters,’ is an

      indirect but nonetheless functional equivalent of saying the child is ‘telling the

      truth.’ It is this aspect of Lawrence that we today expressly overrule as being

      inconsistent with the mandate of Rule 704(b) which specifically prohibits

      witnesses from testifying as to whether another witness ‘testified truthfully.’”

      Id. at 1236 (citing Lawrence v. State, 464 N.E.2d 923, 925 (Ind. 1984)). In light

      of this holding, our supreme court found that the vouching testimony of the

      three expert witnesses had been erroneously admitted, but the mistake remained

      harmless as there existed substantial evidence of Hoglund’s guilt. Id. at 1238.


[6]   On September 17, 2012, Hoglund filed his petition for post-conviction relief,

      which was amended on March 18, 2014, and argued ineffective assistance of

      trial and appellate counsel. A bifurcated evidentiary hearing was conducted on

      November 25 and December 19, 2014. On March 5, 2015, the post-conviction

      court denied Hoglund’s petition for relief.


[7]   Hoglund now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[8]   On appeal, Hoglund contends that only his trial counsel rendered ineffective

      assistance. It is generally accepted that the petitioner in a post-conviction

      proceeding bears the burden of establishing grounds for relief by a

      preponderance of the evidence. 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

      Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 4 of 13
      will not reverse the judgment unless the evidence as a whole unerringly and

      unmistakably leads to a conclusion opposite that reached by the post-conviction

      court. Id. Further, the post-conviction court in this case entered findings of fact

      and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6).

      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, we accept

      findings of fact unless clearly erroneous, but we accord no deference 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.


[9]   To prevail on a claim of ineffective assistance of counsel, a petitioner must

      demonstrate both that his counsel’s performance was deficient and that the

      petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687,

      104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), reh’g denied), reh’g denied, cert.

      denied, 534 U.S. 830 (2001). A counsel’s performance is deficient if it falls

      below an objective standard of reasonableness based on prevailing professional

      norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the

      appropriate test for prejudice, the petitioner must show that there is a

      reasonable probability that, but for counsel’s unprofessional errors, the result of

      the proceeding would have been different. Id. Failure to satisfy either prong

      will cause the claim to fail. Id.




      Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 5 of 13
[10]   Hoglund’s argument focuses on his trial counsel’s performance during the trial

       testimony of the State’s three expert witnesses. Specifically, Hoglund claims

       that trial counsel’s preparation was lacking as he failed to properly cross-

       examine one expert on research and clinical experiences. He also maintains

       that his counsel not only failed to object to the vouching testimony of the

       State’s expert witnesses but also failed to request a mistrial because of it.

       Lastly, Hoglund claims that trial counsel failed to properly object to A.H.’s

       hearsay statements admitted through the testimony of two State expert

       witnesses.


                                       I. Inadequate Trial Preparation.


[11]   Turning to Hoglund’s claim of inadequate trial preparation, we note that it is

       well established that “[c]ounsel is afforded considerable discretion in choosing

       strategy and tactics and we will accord that decision deference.” Randolph v.

       State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. “Reasonable

       strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306,

       309 (Ind. 1986). We “will not lightly speculate as to what may or may not have

       been an advantageous trial strategy as counsel should be given deference in

       choosing a trial strategy which, at the time and under the circumstances, seems

       best. Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).


[12]   Hoglund’s counsel was the third attorney to represent him before the trial court

       and also brought the case to trial. Trial counsel testified at the post-conviction

       hearing that his primary practice area is criminal defense and he had litigated


       Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 6 of 13
       approximately nineteen or twenty jury trials. He stated that he had reviewed

       the depositions and discovery compiled by his two predecessors. By the time

       trial commenced, he felt comfortable that he knew what the expert witnesses

       would testify to. Hoglund argues that counsel’s lack of independent research

       and research into medical treatises and publications to rebut the expert

       witnesses’ opinions prejudiced him. While “[e]ven the finest, most experienced

       criminal defense attorneys may not agree on the ideal strategy or the most

       effective way to represent a client,” based on our review of the record, we

       cannot conclude that trial court’s preparation fell “below an objective standard

       of reasonableness based on prevailing professional norms.” Wentz v. State, 766

       N.E.2d 351, 361 (Ind. 2002), habeas corpus denied, 2009 WL 136182 (S.D. Ind.

       Jan. 20, 2009); French, 778 N.E.2d at 824.


[13]   In similar vein, Hoglund asserts that his trial counsel “provided deficient

       performance by failing to use the transcripts of A.H.’s deposition to impeach

       her during trial.” (Appellant’s Br. p. 13). The post-conviction court

       characterized trial counsel’s cross-examination of A.H. as follows: “[w]hile

       [trial counsel] may not have artfully impeached A.H.’s testimony at trial by

       using a prior inconsistent statement made during her pre-trial discovery

       deposition about the flavor of the substance Hoglund placed on his penis before

       violating her, or utilized the perfect trial strategy, these tactical and strategic

       shortcomings did not individually or cumulatively render his representation

       ineffective.” (Appellant’s App. p. 42).




       Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 7 of 13
[14]   As noted by Hoglund, during closing arguments, trial counsel focused on

       A.H.’s differing accounts of what type of container the substance came in, how

       it was applied, and whether it was a liquid, a lotion, or an oil. During direct

       appeal, our supreme court termed trial counsel’s cross-examination of A.H. as

       “aggressive.” Hoglund, 962 N.E.2d at 1238. Accordingly, even though trial

       counsel’s cross-examination regarding the flavors of the substance was inartful,

       in light of the other discrepancies that trial counsel managed to elicit from A.H.

       and place in front of the jury, we cannot conclude that his performance was

       defective.


                                            II. Vouching Testimony.


[15]   With respect to Hoglund’s argument that trial counsel “provided deficient

       performance by failing to object consistently to vouching testimony” uttered by

       the State’s expert witnesses, we reach a similar result. (Appellant’s Br. p. 14).

       To prevail on a claim of ineffective assistance of counsel due to the failure to

       object, the defendant must show an objection would have been sustained if

       made. Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007), reh’g denied, cert.

       denied, 555 U.S. 972 (2008). As recognized by our supreme court on direct

       appeal, trial counsel did object to some vouching testimony but not consistently

       with every disputed statement. At the time of Hoglund’s trial, the law in

       Indiana permitted “some accrediting of the child witness in the form of

       opinions from parents, teachers, and others having adequate experience with

       the child, and that the child is not prone to exaggerate or fantasize about sexual

       matters.” Lawrence v. State, 464 N.E.2d 923, 925 (Ind. 1984) overruled by

       Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 8 of 13
       Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012). Accordingly, until the supreme

       court’s direct appeal decision in this case, the trial court would not have

       sustained an objection, should one have been timely made. “‘An attorney is

       not required to anticipate changes in the law and object accordingly’ in order to

       be considered effective.” Smylie v. State, 823 N.E.2d 679, 690 (Ind. 2005), cert

       denied 546 U.S. 976 (2005) (citing Fulmer v. State, 523, N.E.2d 754, 757-58 (Ind.

       1988)).


                                                   III. Mistrial.


[16]   In addition, Hoglund complains that his trial counsel’s performance was

       ineffective because he failed “to request a mistrial in response to direct and

       overt vouching testimony.” (Appellant’s Br. p. 15). Although pre-Hoglund

       precedents permitted the admission of vouching testimony, this admissibility

       was not limitless. Opinions by parents, teachers, and others that the child is not

       prone to exaggerate or fantasize about sexual matters “facilitate an original

       credibility assessment of the child by the trier of fact, so long as they do not take

       the direct form of “I believe the child’s story,” or “[i]n my opinion the child is

       telling the truth.” Lawrence, 464 N.E.2d at 925. Relying on this exception to

       the admissibility of vouching testimony, Hoglund disputes Dr. Butler’s

       admitted testimony that she “believe[d] that what [A.H.] told me was the truth

       because of her age[.]” (Trial Transcript p. 82). Even though trial counsel

       objected to the statement, he did not request a mistrial.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 9 of 13
[17]   We agree that the statement falls within the vouching testimony exception as it

       improperly took the “direct form” and improperly invaded the province of the

       jury. See id. Nevertheless, immediately following the objection to the improper

       statement, the trial court admonished the jury, instructing them that the

       statement would be “stricken from the record and [they] should treat that as if it

       had never been said.” (Trial Tr. p. 83). A mistrial is “an extreme remedy

       granted only when no other method can rectify the situation.” Underwood v.

       State, 644 N.E.2d 108, 111 (Ind. 1994). But “[a] timely and accurate

       admonition is presumed to cure any error in the admission of evidence.”

       Heavrin v. State, 675 N.E.2d 1075, 1084 (Ind. 1996), reh’g denied. As the trial

       court properly admonished the jury to disregard the improper vouching

       statement, trial counsel’s request for a mistrial would have been denied.

       Accordingly, trial counsel’s performance was effective.


                                            IV. Hearsay Statements.


[18]   Lastly, Hoglund contends that his trial counsel failed to appropriately object to

       A.H.’s hearsay statements as testified to by the State’s expert witnesses, Dr.

       Mayle and Counselor Shestak. Hoglund objected on hearsay grounds, but the

       trial court admitted the hearsay statements based on the State’s assertion that

       they had been offered pursuant to Ind. Evidence Rule 803(4), i.e., statements

       made for the purpose of medical diagnosis or treatment.


[19]   For statements to be admitted under this exception to the hearsay rules, the

       statements must be “made by persons who are seeking medical diagnosis or


       Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 10 of 13
       treatment and describing the medical history, or past or present symptoms,

       pain, or sensations, or the inception or general character of the cause or external

       source thereof insofar as reasonably pertinent to diagnosis or treatment.” Evid.

       R. 803(4). This exception is grounded in a belief that the declarant’s self-

       interest in obtaining proper medical treatment makes such a statement reliable

       enough for admission at trial. VanPatten v. State, 986 N.E.2d 255, 260 (Ind.

       2013).


[20]   This belief of reliability necessitates a two-step analysis for admission under

       Rule 803(4): First, “is the declarant motivated to provide truthful information

       in order to promote diagnosis and treatment,” and second, “is the content of

       statement such that an expert in the field would reasonably rely on it in

       rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind.

       1996). “Statements made by victims of sexual assault or molestation about the

       nature of the assault or abuse—even those identifying the perpetrator—

       generally satisfy the second prong of the analysis because they assist medical

       providers in recommending potential treatment for sexually transmitted disease,

       pregnancy testing, psychological counseling, and discharge instructions.”

       VanPatten, 986 N.E.2d at 260.


[21]   The first prong of the test, the declarant’s motive to promote treatment or

       diagnosis is equally crucial to a determination of reliability. McClain, 675

       N.E.2d at 331. “[T]he declarant must subjectively believe that he was making

       the statement for the purpose of receiving medical diagnosis or treatment.” Id.

       With most declarants, this is generally a simple matter: “[o]ften, for example

       Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 11 of 13
       where a patient consults with a physician, the declarant’s desire to seek and

       receive treatment may be inferred from the circumstances.” Id.


[22]   But in cases like the one here, where the declarant is a young child brought to

       the medical provider by a parent, we have acknowledged that such an inference

       may be less than obvious. See id. Such young children may not understand the

       nature of the examination, the function of the examiner, and may not

       necessarily make the necessary link between truthful responses and accurate

       medical treatment. See VanPatten, 986 N.E.2d at 261. In that circumstance,

       “there must be evidence that the declarant understood the professional’s role in

       order to trigger the motivation to provide truthful information.” McClain, 675

       N.E.2d at 331. This evidence does not necessarily require testimony from the

       child-declarant; it may be received in the form of foundational testimony from

       the medical professional detailing the interaction between him or her and the

       declarant, how he or she explained his role to the declarant, and an affirmation

       that the declarant understood that role. Id. But whatever its source, this

       foundation must be present and sufficient. VanPatten, 986 N.E.2d at 261.


[23]   Our review of the record indicates that Dr. Mayle testified, without objection

       from Hoglund’s trial counsel, about A.H.’s statements describing the abuse she

       had suffered. Because of the total absence of any foundational testimony by

       Dr. Mayle that A.H. understood the psychologist’s role, trial counsel’s

       performance was defective by failing to object. Likewise, while counselor

       Shestak testified to her standard procedure and standard questionnaire, there

       was no detailed questioning specifically tailored to A.H.’s understanding of her

       Court of Appeals of Indiana | Memorandum Decision 90A02-1503-PC-182 | February 5, 2016   Page 12 of 13
       role. Even though trial counsel objected to A.H.’s hearsay statements about the

       molestation, the trial court admitted counselor Shestak’s statements based on

       Evid. R. 803(4). Trial counsel did not object based on the lack of foundation to

       admit A.H.’s hearsay statements.


[24]   Nevertheless, “errors in the admission of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of a party. VanPatten, 989

       N.E.2d at 267. “Admission of hearsay evidence is not grounds for reversal

       where it is merely cumulative of other evidence admitted.” Id. In the present

       case, A.H. was present at trial, testified, and was aggressively cross-examined.

       A.H.’s testimony on the stand mirrored the hearsay testimony provided by both

       Dr. Mayle and counselor Shestak, making the expert witnesses’ testimony

       merely cumulative and, at most, harmless error. Therefore, we cannot

       conclude that trial counsel provided ineffective assistance.


                                               CONCLUSION

[25]   Based on the foregoing, we hold that trial counsel’s performance was not

       ineffective and the post-conviction court properly denied Hoglund’s petition for

       post-conviction relief.


[26]   Affirmed.


[27]   Najam, J. and May, J. concur




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