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:

JOHN ANDREW GOODRIDGE, ESQ.                        GREGORY F. ZOELLER
Evansville, Indiana                                Attorney General of Indiana

                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General

                                                                                 FILED
                                                   Indianapolis, Indiana

                                                                            Nov 29 2012, 9:48 am

                               IN THE
                                                                                    CLERK
                     COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




TIMOTHY J. GILBERT,                                )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )   No. 62A01-1205-PC-213
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                        APPEAL FROM THE PERRY CIRCUIT COURT
                         The Honorable David O. Kelley, Special Judge
                               Cause No. 62C01-0506-FA-474


                                        November 29, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

           In 2006, Timothy J. Gilbert (“Gilbert”) was convicted of two counts of Child

Molesting, one as a Class A felony1 and one as a Class C felony2, and Escape, as a Class C

felony.3 On direct appeal, Gilbert’s sentence was revised but his convictions were otherwise

affirmed. He subsequently filed a petition for post-conviction relief, which the post-

conviction court denied. Gilbert now appeals.

           We affirm.

                                               Issue

           Gilbert raises the sole issue of whether the post-conviction court erred when it

concluded that he did not receive ineffective assistance of counsel. He points to three alleged

grounds for relief, namely:

               1. Trial counsel failed to object to the admission of evidence;

               2. Trial counsel failed to present exculpatory evidence; and

               3. The cumulative effect of trial counsel’s ineffective performance and the
                  trial court’s error.

                                   Facts and Procedural History

           We take our statement of facts concerning Gilbert’s offenses from this Court’s

unpublished opinion affirming the convictions on direct appeal:

           S.J.C. was approximately six years old when her mother married Gilbert.
           Several times when S.J.C. was between the ages of nine and eleven, Gilbert

1
    Ind. Code § 35-42-4-3(a)(1).
2
    I.C. § 35-42-4-3(b).
3
    I.C. § 35-44-3-5(a).

                                                  2
       engaged in sexual touching and sexual deviate contact with her. S.J.C. did not
       tell anyone about these incidents when they occurred. In May 2005, when
       S.J.C. was approximately sixteen years old, police contacted her concerning
       allegations that Gilbert possessed nude pictures of her. At this time, S.J.C. told
       her mother and police that Gilbert had previously molested and engaged in
       sexual deviate conduct with her. Police investigated the allegations, arrested
       Gilbert on June 1, 2005, and subsequently executed a search warrant, leading
       to the discovery of evidence. Following his arrest, police left Gilbert
       unattended in the jail’s booking area, and Gilbert escaped through a side door.
        Police apprehended Gilbert later the same night after finding him hiding
       underneath a trailer. On June 6, 2005, the State charged Gilbert with the two
       counts of child molesting and escape. On August 26, 2005, Gilbert moved to
       sever the child molesting counts from the escape count, and the trial court
       severed the counts and ordered separate trials. A jury found Gilbert guilty of
       both child molesting counts, and Gilbert then pled guilty to escape.

Gilbert v. State, No. 62A03-0601-CR-20, slip op. at 2-3 (Ind. Ct. App. Dec. 29, 2006).

       After the trial court entered judgments of conviction, it sentenced Gilbert to thirty

years imprisonment for the charge of Class A felony Child Molesting, four years

imprisonment for the charge of Class C felony Child Molesting, and four years imprisonment

for the Class C felony charge of Escape, with all the sentences to run consecutively. This

yielded an aggregate term of imprisonment of thirty-eight years. Id. at 4.

       Gilbert appealed and challenged the propriety of his sentence. A panel of this Court

affirmed Gilbert’s convictions, but reversed and remanded the trial court’s sentencing order

with instructions for the trial court to modify Gilbert’s sentence to run the four-year term of

imprisonment for Escape concurrently with his sentences for Child Molesting. This yielded

an aggregate term of imprisonment of thirty-four years. Id. at 5-6.

       On December 21, 2007, Gilbert filed his petition for post-conviction relief, alleging

that he received ineffective assistance of counsel at trial. On July 13, 2010, the post-


                                               3
conviction court conducted an evidentiary hearing on Gilbert’s petition for post-conviction

relief. On April 11, 2012, the post-conviction court entered its order denying Gilbert’s

petition for relief.

       This appeal ensued.

                                 Discussion and Decision

                                    Standard of Review

       Gilbert contends that the post-conviction court erred when it denied his petition for

relief. Our standard of review in appeals from post-conviction proceedings is well-

established.

       In reviewing the judgment of a post-conviction court, appellate courts consider
       only the evidence and reasonable inferences supporting its judgment. Conner
       v. State, 711 N.E.2d 1238, 1245 (Ind. 1999). The post-conviction court is the
       sole judge of the evidence and the credibility of the witnesses. Fisher v. State,
       810 N.E.2d 674, 679 (Ind. 2004). To prevail on appeal from denial of post-
       conviction relief, the petitioner must show that the evidence as a whole leads
       unerringly and unmistakably to a conclusion opposite to that reached by the
       post-conviction court. Graves v. State, 823 N.E.2d 1193, 1197 (Ind. 2005).
       Where, as here, the post-conviction court enters findings and conclusions in
       accordance with Indiana Post–Conviction Rule (1)(6), we will reverse “upon a
       showing of clear error—that which leaves us with a definite and firm
       conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
       102, 106 (Ind. 2000) (quotation omitted), cert. denied, 534 U.S. 830, 122 S.Ct.
       73, 151 L.Ed.2d 38 (2001). Only where the evidence is without conflict and
       leads to but one conclusion, and the post-conviction court has reached the
       opposite conclusion, will its findings or conclusions be disturbed as being
       contrary to law. Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998).

Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006).

       To prevail in a post-conviction claim alleging the violation of the Sixth Amendment

right to effective assistance of counsel, a defendant must establish the two components set


                                              4
forth in Strickland v. Washington, 466 U.S. 668 (1984). “First, a defendant must show that

counsel’s performance was deficient.” Id. at 687. This requires a showing that counsel’s

representation fell below an objective standard of reasonableness and that “counsel made

errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by

the Sixth Amendment.” Id. Counsel’s performance is presumed effective, and a defendant

must offer strong and convincing evidence to overcome this presumption. Ben-Yisrayl v.

State, 729 N.E.2d 102, 106 (Ind. 2000).

       “Second, a defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial,” that is, a trial where the result is reliable. Strickland, 466 U.S. at

687. To establish prejudice, a “defendant 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. at 694. A reasonable probability is one that is sufficient to undermine

confidence in the outcome. Id.

       During Gilbert’s trial, the State elicited testimony from S.J.C. concerning her reasons

for speaking with police. This testimony included S.J.C.’s repetition of certain information

she had received; Gilbert’s trial counsel did not seek to prevent introduction of this testimony

through a motion in limine or objection at trial. Gilbert’s trial counsel also did not object to

the testimony of several witnesses concerning Gilbert’s escape from the Perry County Jail

after his arrest. Finally, Gilbert’s trial counsel did not attempt to introduce evidence

concerning S.J.C.’s conduct at the time of Gilbert’s offenses or concerning venereal diseases


                                                5
Gilbert was alleged to have that Gilbert now contends amounted to exculpatory evidence.

Gilbert now raises these as bases for post-conviction relief; we address each contention in

turn.

                  Failure to Object to the State’s Introduction of Evidence

        Gilbert first contends that his trial counsel was ineffective by failing to object to

evidence the State introduced. He draws our attention to two specific types of evidence, both

of which he argues should have been excluded under Indiana Evidence Rule 404(b): S.J.C.’s

testimony concerning her reasons for reporting Gilbert’s conduct to the police, and several

police officers’ testimonies concerning Gilbert’s escape from the Perry County Jail.

        Relevant evidence is that evidence “having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Ind. Evidence Rule 401. Relevant evidence is

admissible unless otherwise provided by applicable law; evidence that is not relevant is not

admissible. Evid. R. 402.

        The admissibility of relevant evidence is limited by, among others, Evidence Rules

403 and 404. Rule 403 provides that relevant evidence may be excluded “if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.” Rule 404 provides that “[e]vidence of a person’s character or trait of

character is not admissible” except in certain circumstances. Evid. R. 404(a). Further,

“[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a


                                              6
person in order to show action in conformity therewith,” but may be admissible “for other

purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident,” subject to reasonable notice or good cause shown for lack of notice.

Evid. R. 404(b).

       Gilbert points to two incidences in which he claims trial counsel failed to object to

prior-acts evidence that he contends were inadmissible under Rule 404. The first of these

relates to S.J.C.’s testimony concerning her reasons for giving a statement to police

implicating Gilbert. Gilbert’s second contention relates to testimony from several witnesses

concerning his escape from the Perry County Jail.

       We turn first to Gilbert’s contentions concerning counsel’s failure to object to portions

of S.J.C.’s testimony. Gilbert takes issue with his counsel’s lack of objection to the

following testimony from S.J.C.:

       [THE STATE]:          Why did you decide to tell?


       [S.J.C.]:     Because they [Perry County Sheriff and a deputy who conducted
       an interview with S.J.C.] had said something about another incident with a
       young girl, and not as young as I was, but just, I think she was like 16 or 17
       and I had always just thought that I was just convenient for him [Gilbert] and
       that he would never do it again, and then I thought about my little sister …
       who’s right now 11 years old, and I was afraid for her and I didn’t want
       anything to happen to her and I thought about what happened to me and I
       never wanted him [Gilbert] to see her again.

(Trial Tr. at 279.)

       Gilbert’s trial counsel did not object to this testimony. However, the testimony did not

go unchallenged. Counsel inquired further into this testimony during cross-examination, and


                                               7
asked S.J.C. whether she was aware that the report of another possible victim was ultimately

determined to be false. In addition, Gilbert’s trial counsel introduced testimony from Perry

County Sheriff Leslie Glenn that the allegations concerning Gilbert’s conduct with another

sixteen- or seventeen-year-old were not related to a child molesting case, but instead would

have resulted in internal disciplinary action. At the post-conviction hearing, counsel testified

that part of the strategy at trial was to characterize S.J.C. as out to “save the world” and

“making this stuff up to make herself look like a hero,” and that this testimony advanced that

strategy. (PCR Tr. at 59.)

         Upon seeking post-conviction relief, Gilbert now challenges “classical tactical choices

of [the] sort [that] hardly ever support a claim of ineffective assistance because they are

matters of trial strategy.” Woods v. State, 701 N.E.2d 1208, 1225 (Ind. 1998). While trial

counsel’s approach to Gilbert’s case may not have been successful, we do not second-guess

such tactical and strategic decisions as those to which Gilbert now objects. We therefore

cannot conclude that the post-conviction court erroneously denied Gilbert’s petition on this

basis.

         We next turn to Gilbert’s complaint that his trial counsel failed to object to evidence

concerning Gilbert’s escape from the Perry County Jail. During the course of the trial,

several witnesses testified concerning the chain of events leading to Gilbert’s escape from the

Perry County Jail and his subsequent recapture. Gilbert had already won bifurcation of his

trial, with the charge of escape to be tried after the trial for child molesting; thus, the escape

charge was not before the jury for a determination of guilt. At the post-conviction hearing,


                                                8
Gilbert’s trial counsel acknowledged that he should have objected or sought to exclude

evidence concerning Gilbert’s escape from the jail. But during the trial, counsel obtained a

limiting instruction from the trial court, admonishing the jury that

       Evidence has been introduced that the Defendant was involved in a crime,
       escape from custody, other than those crimes charged in the information. This
       evidence has been received solely on the issue of Defendant’s knowledge.
       This evidence should be considered by you only for that limited purpose.

(Trial App. at 130.)

       Generally, “[a] timely and accurate admonition is presumed to cure any error in the

admission of evidence.” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). Assuming,

without deciding, that Gilbert’s trial counsel failed to properly object to evidence concerning

Gilbert’s escape from jail that would otherwise be inadmissible, Gilbert advances no

argument that the risk of harm from that erroneous admission of evidence was not cured by

the jury instruction quoted above. Absent more, we cannot conclude that the post-conviction

court erred in denying post-conviction relief on this ground, as Gilbert has not demonstrated

that he was prejudiced by the admission of that evidence, even in the face of the jury

admonishment.

       Because we do not second-guess the strategic decisions of trial counsel and cannot

conclude that Gilbert was prejudiced by his counsel’s failure to object to evidence concerning

Gilbert’s escape from the Perry County Jail, we cannot conclude that the post-conviction

court erred in denying Gilbert’s petition for post-conviction relief on the basis of counsel’s

failure to object to the admission of evidence.



                                              9
                    Failure to Produce Allegedly Exculpatory Evidence

       Gilbert also contends that his trial counsel was ineffective for failing to introduce

exculpatory evidence at trial. Trial counsel’s decision whether to call a witness “is a matter

of trial strategy which an appellate court will not second-guess, although a failure to call a

useful witness can constitute deficient performance.” Brown v. State, 691 N.E.2d 438, 447

(Ind. 1998) (citations omitted). Nevertheless, we do not “declare counsel ineffective for

failure to call a particular witness absent a clear showing of prejudice.” Ben-Yisrayl v. State,

729 N.E.2d 102, 108 (Ind. 2000).

       At the post-conviction hearing, Gilbert produced testimony from his trial counsel and

from his brother, Shawn Gilbert (“Shawn”), that counsel did not speak with certain proposed

witnesses during his investigation of the case and deposed some witnesses but did not call for

their testimony at trial. Gilbert did not testify at the post-conviction hearing to provide

testimony on what these proposed witnesses would say. Shawn did testify, however, and

indicated that these proposed witnesses could provide character testimony and would testify

to their observations of S.J.C.’s interactions with Gilbert during the period of time

encompassed by the charged offenses.

       Gilbert also produced testimony from one of these witnesses, Pete Riddle (“Riddle”),

who was present at the courthouse during Gilbert’s trial but was not called to testify at the

trial. Riddle testified during the post-conviction proceeding that he did not observe any

interactions between S.J.C. and Gilbert that he thought were inappropriate or unusual during

regular game nights at Gilbert’s home during the time period of the charged offenses, nor did


                                              10
he perceive S.J.C. to be withdrawn, angry, or stand-offish toward Gilbert. On cross-

examination, Riddle acknowledged no special expertise in recognizing behavioral patterns

among individuals who have been victims of child molesting. Yet none of this rises to level

of potentially exculpatory testimony without which Gilbert was prejudiced at trial.

       Gilbert also contends that his trial counsel was ineffective for failing to introduce

evidence concerning Gilbert’s diagnosis of genital warts and to pursue evidence concerning

whether S.J.C. had contracted the condition. The rationale behind this theory on seeking

post-conviction relief appears to be that if S.J.C. had never been diagnosed with genital

warts, the absence of that diagnosis would tend to exculpate Gilbert. But Gilbert’s trial

counsel investigated that theory and ultimately decided not to pursue it because at least one

physician indicated that it would have been impossible to know whether Gilbert was

contagious when he had sexual contact with S.J.C. Absent that information, Gilbert’s trial

counsel concluded that the theory was too tenuous to be worth pursuing and testified at the

post-conviction hearing that they were a “double-edged sword” because of the possible harm

to Gilbert’s case that could come from introducing evidence that he had engaged in

unprotected sex. (PCR Tr. at 70.) Simply put, this is another strategic decision of counsel

that we decline to second-guess upon post-conviction review.

       We cannot conclude that the post-conviction court erred when it concluded that

Gilbert did not receive ineffective assistance of counsel as a result of the failure of counsel to

call witnesses such as Riddle or to introduce evidence concerning Gilbert’s venereal disease.




                                               11
                                     Cumulative Error

       As we find neither prejudice nor error in any of the bases that Gilbert advances as

instances of ineffective assistance of counsel, we cannot conclude that counsel’s aggregate

errors resulted in deprivation of Gilbert’s Sixth Amendment right to effective assistance of

trial counsel.

                                       Conclusion

       The post-conviction court did not err when it concluded that Gilbert was not deprived

of effective assistance of counsel at trial. We therefore affirm the post-conviction court’s

judgment denying Gilbert’s petition for post-conviction relief.

       Affirmed.

RILEY, J., and CRONE, J., concur.




                                            12
