Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                        Nov 12 2014, 9:57 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.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JACOB D. WINKLER                                GREGORY F. ZOELLER
KATHERINE J. NOEL                               Attorney General of Indiana
Noel Law
Kokomo, Indiana                                 KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES T. BAGBY,                                 )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 34A04-1309-PC-453
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE HOWARD CIRCUIT COURT
                       The Honorable Brant J. Parry, Special Judge
                            Cause No. 34C01-1106-PC-99


                                    November 12, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Defendant, James T. Bagby (Bagby), appeals the post-conviction court’s

denial of his petition for post-conviction relief.

       We affirm.

                                           ISSUES

       Bagby raises three issues on appeal, which we consolidate and restate as the

following two issues:

       (1) Whether Bagby is entitled to a new trial based upon newly discovered evidence;

           and

       (2) Whether Bagby received ineffective assistance of trial counsel.

                         FACTS AND PROCEDURAL HISTORY

       We adopt this court’s statement of facts as set forth in our memorandum opinion

issued in Bagby’s direct appeal, Bagby v. State, No. 34A02-1002-CR-158 (Ind. Ct. App.

Feb. 18, 2011), trans. denied:

            Bagby, who is over the age of eighteen, has a stepdaughter, A.R., who
            was fifteen years old during the relevant period of time. Between
            November and December 2008, Bagby went into A.R.’s bedroom
            around 5:30 a.m. and had sexual intercourse with her on at least two
            occasions. He threatened A.R. not to tell anyone. On January 2, 2009,
            A.R. reported the incident to a family member, and the police were
            contacted. In the course of the investigation, A.R.’s bed sheets were
            seized, and laboratory results later revealed that Bagby’s sperm was on
            the sheets.

            On January 6, 2009, Bagby was charged with [C]lass D felony criminal
            confinement, on January 14, 2009, the State added two counts of [C]lass
            B felony sexual misconduct with a minor, and on January 23, 2009, the
            State added a fourth count alleging [C]lass D felony sexual battery.
            Bagby’s jury trial took place on September 22 and 23, 2009. At the close

                                               2
           of the first day of trial, Bagby sought to introduce a statement
           purportedly made by A.R. to the father of a former sexual partner that
           the partner was her “one and only.” Tr. p. 115. Bagby sought to present
           this statement through the testimony of A.R.’s mother, who claimed to
           have overheard the conversation. The trial court denied admission of the
           evidence based on the Rape Shield Rule.

           At the conclusion of the State’s evidence, the State dismissed the
           criminal confinement charge. The jury found Bagby not guilty of sexual
           battery and guilty of two counts of sexual misconduct with a minor.
           Following the December 16, 2009, sentencing hearing, the trial court
           imposed fifteen-year sentences on each of the two convictions, to run
           consecutively.

See id. at 1. On direct appeal, Bagby raised issues related to the admission of A.R.’s

testimony regarding her prior sexual partners, prosecutorial misconduct, and his sentence.

On February 18, 2011, we affirmed Bagby’s conviction. Id.

      On May 20, 2011, Bagby filed a pro se petition for post-conviction relief. Bagby

amended his petition on February 23, 2012 and subsequently on February 15, 2013. In

his petition, Bagby asserted claims of newly discovered evidence and ineffective

assistance of trial counsel. An evidentiary hearing for Bagby’s second amended post-

conviction relief petition was held on February 20, 2013. Thereafter, both parties filed

their proposed findings of fact and conclusion of law. On May 27, 2013, the post-

conviction court denied Bagby’s petition for relief. On July 29, 2013, Bagby filed a

motion to correct error and the State filed its response on August 13, 2013. On August

16, 2013, the trial court denied Bagby’s motion.

      Bagby now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                                     I. Standard of Review

                                            3
       Under the rules of post-conviction relief, the petitioner must establish the grounds

for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Strowmatt

v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on appeal from the

denial of relief, the post-conviction petitioner must show that the evidence is without

conflict and leads unerringly and unmistakably to a conclusion opposite that reached by

the post-conviction court. Id. at 975. The purpose of post-conviction relief is not to provide

a substitute for direct appeal, but to provide a means for raising issues not known or

available to the defendant at the time of the original appeal. Id. If an issue was available

on direct appeal but not litigated, it is waived. Id.

                                  II. Newly Discovered Evidence

       The Indiana Supreme Court has enunciated nine criteria for relief based on

admission of newly discovered evidence.

       [N]ew evidence will mandate a new trial only when the defendant demonstrates that:
       (1) the evidence has been discovered since the trial; (2) it is material and relevant;
       (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or
       incompetent; (6) due diligence was used to discover it in time for trial; (7) the
       evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and
       (9) it will probably produce a different result at retrial.

Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000) (citing Fox v. State, 568 N.E.2d 1006,

1007 (Ind. 1991)). “This Court analyzes these nine factors with care, as ‘the basis for

newly discovered evidence should be received with great caution and the alleged new

evidence carefully scrutinized.’” Id. (quoting Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987)).

The burden of showing that all nine requirements are met rests with the petitioner for post-

conviction relief. Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998).


                                               4
       “In ruling whether a piece of evidence would produce a different result, the [post-

conviction court] may properly consider the weight that a reasonable trier of fact would

give it and, while so doing, may also evaluate its probable impact on a new trial in light of

all the facts and circumstances shown at the original trial of the case.” Fox v. State, 568

N.E.2d 1006, 1007 (Ind. 1997). “The defendant must raise a strong presumption that the

result at any subsequent trial in all probability would be different.” Bunch v. State, 964

N.E.2d 274, 296 (Ind. Ct. App. 2012), reh’g denied, trans. denied.            “A sufficient

probability of a different result upon retrial is present where the omitted evidence creates

a reasonable doubt that did not otherwise exist.” Fox, 568 N.E.2d at 1008.

       Bagby argues that the post-conviction court erred by denying his request for a new

trial based on newly discovered evidence. Bagby first argues that the discovery of A.R.’s

sexual history with other men was discovered after trial; therefore, the evidence was

material in showing that other persons may have committed the sexual acts. Secondly,

Bagby argues that the post-conviction court erred in refusing to admit the affidavits of

A.R.’s mother, Kim Bagby (Kim) which presented newly discovered evidence. We will

discuss each issue in turn.

                               A. A.R.’s Prior Sexual History

       The post-conviction court denied Bagby’s claim primarily on the basis that A.R.’s

sexual history, though newly discovered evidence, would not have produced a different

result. In reaching to that conclusion, the post-conviction court stated the following:

       The evidence of [A.R.’s] prior sexual activity with Taylor Yard, and her
       history of abuse at the hands of several men was discovered after the trial.
       The evidence is material and relevant, not cumulative, not merely

                                             5
         impeaching, and not privileged or incompetent. Due diligence was used by
         the police and [trial counsel] prior to trial yet the evidence was not
         discovered. The evidence is worthy of credit and can be reproduced upon
         a retrial of this case. However, the [c]ourt finds that this evidence is not
         likely to produce a different result at trial. [] Yard testified that he had sex
         with [A.R.] in December 2008. The allegations against [Bagby’s] []
         conduct is from November and December 2008. It is unclear whether []
         Yard and [] [A.R.] were together before or after Bagby committed these
         crimes. Further, it is unlikely that the jury would come to different result
         [] that the tear to [A.R.’s] hymen may not have been as a result of Bagby’s
         conduct. Dr. Haendiges testified in the original trial that she could not tell
         the age of the tear. She testified on cross examination that the tear could
         have occurred as a result of an accident. She could not testify that the tear
         was a result of Bagby’s conduct. Even with this evidence, the jury would
         still have the testimony of [A.R.] regarding what happened to her, the
         testimony of [Kim], [] the physical evidence (bed sheets), and the testimony
         of the Indiana State Police experts.

(Conclusion #21).1

         In light of the post-conviction court’s detailed analysis of A.R.’s sexual history, we

agree with its conclusion that Bagby failed to carry his burden of proof and no new trial is

mandated. Assuming A.R.’s sexual history is presented on Bagby’s retrial, we fail to see

how the results would be different since there is sufficient evidence to prove Bagby

committed the two acts of sexual misconduct. Shortly after the incident, A.R. reported the

incident to Kim. Kim testified at Bagby’s trial that A.R. had reported to her that Bagby

had touched “her down there” and that Bagby would go into her “room at 5:30 a.m. every

morning.” (Trial Tr. p. 94).2 In addition, A.R. wrote private letters recounting her

molestations, and in one of those letters, she stated that Bagby had sexually molested her.


. Bagby included the trial court’s findings and conclusions of law at the end of his brief. Instead of citing his brief,
1

we will reference the particular Finding or Conclusion of Law by number.
2
 Throughout this opinion, the transcript of Bagby’s trial will be cited as “Trial Tr.”and the transcript of the post-
conviction hearing will be cited as “P-C Tr.”

                                                            6
A.R. intended to give the letters to her friend’s mother, Laura Groover (Groover) instead;

she retained them. Kim later found the letters hidden under A.R.’s bed, read some of them,

and then placed them on top of the coffee table. Kim testified that Bagby later found the

letters and burnt them on the grill on the night he was arrested.

       Bagby’s claim that he previously had sex with Kim on A.R.’s bed, thus explaining

why his DNA specimen was on A.R.’s bed sheets, we find no merit. At trial, Kim clarified

that she and Bagby had sex on A.R.’s bed on at least on two occasions in the summer of

2008, and that the sheets had since been washed. There was no evidence on record showing

that the DNA on A.R.’s bed sheet belonging to men other than Bagby’s. The value of this

DNA evidence was great as it provided a clear link to the State’s claim that Bagby molested

A.R. In addition, the presence of Bagby’s DNA on A.R.’s bed bolstered A.R.’s testimony

that Bagby abused her in November and in December 2008.

       Based on the foregoing, we find that the ninth prong in Carter for newly discovered

evidence was not met. Though A.R.’s sexual history was discovered after trial, that

evidence, even if presented on retrial, would not produce a different result. Although it is

true that there were some factual discrepancies at the evidentiary hearing as to when other

men molested her, A.R.’s account of Bagby molesting her in November and December

2008 did not change. A.R. identified her abuser, and her testimony of the acts of

molestation were specific as to who molested her in the winter of 2008. In this regard, we

find that Bagby has not shown that A.R.’s sexual history met the nine criteria expressed in

Carter.

                                    B. Kim’s Affidavits

                                              7
       Bagby argues that the post-conviction court erred in refusing to admit the affidavits

attached to his petition. At the close of the evidence, Bagby sought to have the two

affidavits sworn to by Kim on May 28, 2011, admitted into evidence. In one of the

affidavits, Kim stated that on the day before trial, the prosecutor called her and she

informed the prosecutor that she and Bagby had sex on A.R.’s bed, and that A.R. had

confessed to her that Justin Richard was her one and only. In the second affidavit, Kim

stated that on the morning of Bagby’s trial, the prosecutor requested her not to disclose to

Bagby’s attorney that she and Bagby had sex on A.R.’s bed. The State moved to strike the

admission of the affidavits based upon the fact that the statements were hearsay and the

affiant could not testify. Ultimately, the post-conviction court sustained the State’s

objection to the admission of the affidavits.

       Indeed, not affording the State an opportunity to cross-examine Kim, whose

testimony Bagby sought to present by way of affidavit, prompted the post-conviction court

to sustain the State’s objection in the first place. See Shumaker v. State, 523 N.E.2d 1381,

1382 (Ind. 1988) (noting that the proffered affidavit was hearsay and improperly admitted

because it was an out-of-court statement offered to prove the truth of the matters asserted

therein and not susceptible to cross-examination).

       In as much as Bagby now claims that the affidavits presented new evidence, some

of that evidence was discussed during trial and, therefore, was not new. Kim testified at

trial that she and Bagby shared two nights on A.R.’s bed in the summer of 2008, and that

the sheets were washed before A.R. was molested in November and December of 2008.

Consequently, Kim’s claim of having slept with Bagby in A.R.’s bed was neither new nor

                                                8
relevant. Kim’s allegation that A.R. had confessed to her that Justin Richard was her one

and only sexual partner was presented in Bagby’s direct appeal. Pursuant to Indiana

Evidence Rule 412, this court refused to admit the last allegation for the simple reason that

the evidence related to A.R.’s past sexual history. Thus, it was not new evidence. The

only other evidence that was new and not discussed at trial was Bagby’s accusation that

the prosecutor ineffectually asked Kim not to divulge to the defense that she had slept with

Bagby in A.R.’s bed. Even supposing Bagby’s claim to be true, Kim disregarded any such

command of keeping the information to herself, since she disclosed her sexual doings on

A.R.’s bed during trial.

         We also reject Bagby’s claim that because the State had the affidavits from May

2011, and had refused to counter the affidavits, the post-conviction court should have

accepted the contents of the affidavits as true. Bagby relies on Scharbrough v. State, 232

N.E.2d 592, 597 (Ind. 1968); and Finger v. State, 293 N.E.2d 25, (Ind. 1973). In

Scharbrough, Scharbrough pled guilty to manslaughter pursuant to a plea agreement.

Scharbrough, 232 N.E.2d at 596. In exchange, the State was to communicate to the court

on the murder charge dismissal, which it failed to do, and Scharbrough was convicted of

murder. Id. As a result, Scharbrough filed a motion for new trial supported by an affidavit,

but then the State failed to file counter-affidavits. Id. In its holding, our supreme court

stated

         This court is at a loss to understand why no counter-affidavit was filed as to what
         is set out in the supporting affidavit to the motion for a new trial, if it was not the
         truth. We are bound under our rules to accept the affidavit as the truth, since it is
         uncontradicted.


                                                9
Id. In Finger, the defendant filed a motion to correct error and supported it with an affidavit

arguing ineffective assistance of counsel. Finger, 293 N.E.2d at 26. In affirming the trial

court’s decision, the supreme court stated,

        The State filed no counter-affidavit in response to the defendant’s
        affidavit, and it is [d]efendant’s contention that the court was therefore
        bound to accept his affidavit as true, citing Scharbrough[]. We did not
        in that case, however, indicate, as is reflected by the head note, that we
        were bound, in all circumstances, to accept the truth of affidavits filed in
        support of such motions but only that we were so bound in that case.
        Counsel for [d]efendant, we are sure, will acknowledge certain
        distinguishing features between the Scharbrough case and the one at bar.
        In the Scharbrough case, the allegations of the affidavit were factual,
        they concerned matters that were within the knowledge of the State and
        therefore susceptible to contradiction, if not true. The allegations of []
        the defendant’s affidavit herein are largely conclusive and opinionative.
        They relate not to matters of which the State could have any knowledge
        but rather to matters concerning which it could have no knowledge; and,
        conveniently, the only person who could counter, i.e. the lawyer whose
        effectiveness is being challenged, is dead. Although defense counsel
        presented no witness other than the defendant, there is nothing, other
        than the defendant’s affidavit, that suggests that [d]efendant was
        inadequately represented; and opinions and conclusions, although in
        affidavit form, have no weight as evidence. This is particularly true
        under the circumstances of this case.

Id. (internal citations omitted). In both Scharbrough and Finger, the supreme court

followed Rule 1-15 which was limited to motions supported by affidavits.3 As in Finger,

here, the State did not counter the affidavits related to matters which the State did not have

knowledge. Additionally, the declarant of the affidavits, Kim, was unavailable to testify

at Bagby’s evidentiary hearing. In addition, as noted above, P-C.R. 1(5) gives the trial

court discretion to allow, but it doesn’t compel it to accept affidavits. Based on that, we


3
 Supreme Court Rule 1-15 referenced in Scharbrough appears to have been replaced or incorporated into Indiana
Trial Rule 59(H). See Marcia L. Gienapp, Indiana’s Trial Rule 59: P-M Gas & Wash Co. v. Smith, 13 Val U.L.
Rev. 199, 212 (1979).

                                                      10
conclude that the post-conviction court did not abuse its discretion by refusing to admit

Kim’s affidavits.

                        II. Ineffective Assistance of Trial Counsel

      According to Bagby, his trial counsel provided ineffective assistance. The standard

by which we review claims of ineffective assistance of counsel is well established. In order

to prevail on a claim of this nature, a defendant must satisfy a two-pronged test, showing

that: (1) his counsel’s performance fell below an objective standard of reasonableness

based on prevailing professional norms; and (2) there is a reasonable probability that, but

for counsel’s errors, the result of the proceeding would have been different. Johnson v.

State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005), (citing Strickland v. Washington, 466

U.S. 668, 690, 694 reh’g denied), trans. denied. The two prongs of the Strickland test are

separate and independent inquiries.      Id.    Thus, “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should

be followed.” Timberlake, v. State, 753 N.E.2d 591, 603 (Ind. 2001) (quoting Strickland,

466 U.S. at 697) reh’g denied, cert. denied, 537 U.S. 839 (2002).

      Counsel is afforded considerable discretion in choosing strategy and tactics and we

will accord those decisions deference. Id. A strong presumption arises that counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. Id. The Strickland Court recognized that even the

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

the most effective way to represent a client.       Id.   Isolated mistakes, poor strategy,

inexperience, and instances of bad judgment do not necessarily render representation

                                               11
ineffective. Id. Furthermore, we will not speculate as to what may or may not have been

advantageous trial strategy as counsel should be given deference in choosing a trial strategy

which, at the time and under the circumstances, seems best. Johnson, 832 N.E.2d at 997.

       Here, Bagby makes five claims that his trial counsel was ineffective, which we

restate as: Whether his trial counsel failed to (1) investigate; (2) adequately cross-examine

State’s witnesses; (3) adequately defend against the DNA evidence; (4) confer with him

prior trial; and (5) know the exceptions of the Rape Shield Law. We will address each of

these issues in turn.

                                    1. Failure to Investigate

       It is undisputed that effective representation requires adequate pretrial investigation

and preparation. Badelle v. State, 754 N.E.2d 510, 538 (Ind. Ct. App. 2001), trans. denied.

However, it is well-settled that we should resist judging an attorney’s performance with

the benefit of hindsight. Id. As such, “[w]hen deciding a claim of ineffective assistance

of counsel for failure to investigate, we apply a great deal of deference to counsel’s

judgments.” Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002).

       Bagby makes several arguments regarding trial counsel’s investigation of his case.

First, Bagby argues that his trial counsel did not interview any of the fifteen witnesses he

provided. We recognize that under certain circumstances, failure to call a useful witness

can constitute deficient performance. See Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998).

However, both the Indiana supreme court and this court have previously held that “a

‘decision regarding what witnesses to call is a matter of trial strategy which an appellate

court will not second-guess.’” Johnson, 832 N.E.2d at 1003 (quoting Brown, 691 N.E.2d

                                              12
at 447). Bagby claims that his own list of witnesses had information regarding A.R.’s prior

sexual history, and their testimony would have impeached A.R.’s testimony. During the

post-conviction hearing, Bagby’s trial counsel testified that when he reviewed the list of

names that Bagby had supplied, he determined that each person on the list could only testify

as to A.R.’s prior sexual history and their testimony would be inadmissible in light of the

Rape Shield Statute. Also, trial counsel stated that the bulk of their testimony would have

been “either he told me or she told me [].” (P-C Tr. 118). We conclude that Bagby’s claim

fails.

         Bagby also argues that trial counsel’s failed to recall or investigate Groover as a

potential witness was inexcusable. Specifically, Bagby contends that trial counsel “failure

to have notes, information or strategy regarding [Groover] . . . in his defense[,] fell far below

any reasonable attorney’s behavior. In fact, his [] lack of recall regarding this witness

exhibits his lackadaisical attitude toward the defense of his case.” (Appellant’s Br. pp. 20-

21).4 We disagree.

         As stated in the foregoing, Groover was the mother to A.R.’s friend. According to

the parties’ brief, in a videotaped statement admitted as P-C Exh. 14—which was not

enclosed in our review—A.R. stated that she showed Groover the private letters recounting

the acts of molestation which took place in November and December of 2008; and that

Groover read the letters and gave them back to her. Contrary, A.R. testified at Bagby’s trial

that she intended to give the letters to Groover, instead she retained them. Further, the


 4
  Bagby also argues that trial counsel failed to cross-examine A.R. regarding the letters she wrote to Groover.
 Again, Bagby references P-C Exh. 14, a video recording where A.R. stated that she handed the private letters to
 Groover. Though marked in the P-C Exhibit table of content, the disk was not enclosed for our review.

                                                         13
record reveals that Kim later found the letters hidden under A.R.’s bed. As for trial

counsel’s failure to recall Groover as a potential witness, trial counsel testified that

Groover’s testimony—whether she had seen the private letters—had been presented at trial,

it would have been damaging to Bagby’s case because it would have only supported A.R.’s

claim that Bagby molested her. Based on the foregoing, we concluded that trial counsel

tactic of not exploring Groover as a potential witness was not deficient.

          Lastly, Bagby argues that trial counsel failed to elicit testimony from Kim that she

had sex with Bagby on A.R.’s bed. Due to that fact, Bagby contends that the State took

advantage of that information in its closing argument by stating that “they slept in the bed

a couple of times . . . but what [is] missing from that is she didn’t have sexual intercourse

with her husband, [] in that bed, never said she did, [] no evidence of that, just simply they

slept there.” (Trial Tr. p. 214). In this regard, Bagby argues that he was “prejudiced because

having [Kim’s] testimony that he had sexual relations in A.R.’s bed” would have explained

why his semen was on A.R.’s sheets and would have “assisted in mitigating the damaging

effect of the DNA evidence later entered at trial.” (Appellant’s Br. p. 21). It is well

established that final summation is not evidence but an opportunity to advance one’s theory

of the case. Moreover, the jury was admonished that closing arguments were not evidence

and that the State bore the burden of proving Bagby committed the sexual acts. See Gamble

v. State, 831 N.E.2d 178, 184-85 (Ind. Ct. App. 2005) (holding that jury instructions served

to lessen any persuasive effect that the alleged improper argument may have had), trans.

denied.



                                               14
        Based on the foregoing, we find trial counsel’s lack of enthusiasm in spending his

trial preparation tracking down witnesses whose evidence would have been inadmissible,

secondhand, or detrimental to Bagby’s case was not defective, but purely strategic.

                          2. Failure to Cross-Examine State Witnesses

        Bagby further complains that his trial counsel failed to adequately cross-examine

A.R. and Dr. Michelle Haendiges (Dr. Haendiges), the gynecologist who examined A.R.

for signs of trauma.

                                    A. A.R.’s Testimony

        “It is well settled that the nature and extent of cross-examination is a matter of

strategy delegated to trial counsel.” Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App.

1997), trans. denied. We assess counsel’s performance based on facts that are known at the

time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App.

2006), trans. denied. When considering whether counsel’s performance was deficient, “the

question is not whether the attorney could—or even should—have done something more”;

rather “the inquiry must focus on what the attorney actually did[.]” Reed, 866 N.E.2d at

769.

        Bagby takes great exception to trial counsel’s election not to impeach A.R.’s

testimony as to whether she showed the letters to Groover. Contrary to his assertion, A.R.

testified during Bagby’s trial that she did not give the letters to Groover as intended; rather,

she hid them under her bed and the letters were later discovered by Kim. In addition, as

stated in the preceding paragraphs, trial counsel testified that he could not recall Groover,

thus explaining his reasons for not questioning A.R. on whether she revealed the letters to

                                               15
Groover. Lastly, at the time of the trial and under the circumstances, counsel acknowledged

that Groover’s testimony would be against Bagby’s interest. In this regard, we find that

Bagby has not overcome the presumption that counsel performed effectively.

        Bagby also argues that failure to cross-examine A.R. regarding her inconsistent

statements she made in a videotaped recording entered as P-C Exh. 14 constituted deficient

performance. According to the parties’ briefs, some of the inconsistent statements related

to what clothes A.R. was dressed in when Bagby molested her, and who was in the room

when she was being molested. Since the exhibit is not enclosed for our review, we give

great deference to the post-conviction court’s conclusion stating in part that

        There is no question, [A.R.] made some inconsistent statements in this matter.
        [A.R.] waivered [sic] on the clothing she was wearing, who was present in the
        home at the time of the abuse, whether her sister was in the room at the time the
        abuse occurred. However, the victim never waivered [sic] in her statement that
        the abuse did occur and that [Bagby] was the perpetrator. Even though [trial
        counsel’s] performance may have been deficient in his cross examination of the
        victim, the [c]ourt finds no reasonable probability that the result of the trial would
        have been different. Bagby’s claim fails.

(Conclusion #11).
                               B. Dr. Haendiges’ Testimony

        Next, Bagby contends that trial counsel failed to cross-examine Dr. Haendiges. Dr.

Haendiges testified at Bagby’s deposition that she found that A.R. had a “well-healed three

millimeter scar or prior tear to the hymenal [sic] ring” that was not current. (Trial Tr. p.

185). Based on that evidence, Bagby argues that trial counsel failed to cross-examine Dr.

Haendiges as to the healing period for a hymeneal scar.

        Aside from his allegations, we are not convinced that the outcome of the trial would

have been any different had trial counsel cross-examined the doctor. The record reveals

                                              16
that neither the State nor the defense questioned the doctor on the healing rate of a

hymeneal tear. Additionally, Bagby did not present evidence at his evidentiary hearing on

the healing period of a hymen. Although trial counsel did not cross-examine the doctor

about the healing time, he did develop evidence that sexual intercourse was not the only

vehicle to cause the hymeneal tear. During his cross-examination, Dr. Haendiges testified

that the hymeneal tear could also have been caused by a “bicycle” injury or if A.R. had

fallen onto a structure. (Trial Tr. p. 191). Accordingly, Bagby has not established that he

suffered any prejudice from trial counsel’s failure to raise the question with Dr. Haendiges.

                           3. Failure to Challenge DNA Evidence

        Bagby argues that trial counsel did not challenge the statistical probability of the

DNA evidence. At trial, trial counsel cross-examined the DNA Analyst as to whether

someone other than Bagby contributed to the DNA. The DNA Analyst testified that with

a degree of scientific certainty, Bagby’s sperm fractions were found in items 2A1, 2A2,

2A3, 2A5, and 2A8.

        At Bagby’s evidentiary hearing, the DNA Analyst testified that “I have a DNA

profile from a non-sperm fraction of a cutting of a sheet, which is item 2A8 that matches

the DNA profile of [A.R.]. The DNA result obtained from the non-sperm fraction of the

cutting of the sheet, item 2A3, [] demonstrated the presence of the mixture from which []

Bagby and A.R., could not be excluded as possible contributors. . . . A DNA result from

the sperm fraction of the cutting of the sheet, item 2A8 demonstrated the presence of a

mixture with the major to minor profile” and that Bagby was the source of the major DNA

and that the minor DNA was A.R.’s. (P-C Tr. pp. 42-42).

                                             17
        With respect to the item 2A8 containing a mixture of sperm and non-sperm

fraction, the DNA Analyst testified that the probability was one in ninety million that

someone other than A.R. was the contributor of the non-sperm fraction. With regard to

item 2A3, the DNA Analyst testified that the probability that someone other than Bagby or

A.R. contributed the DNA was one in sixty-six million. However, the probability that a

person other than Bagby contributed to the sperm fraction in item 2A8 was only one out of

ten. Bagby contends that there was no thorough cross-examination on the very low

probability of his DNA in item 2A8 at his trial. Regardless, we find that, even if trial

counsel followed a strategy of attacking the DNA results and pointing out the low

probability of Bagby’s DNA on item 2A8, he would still be burdened with the fact that his

sperm was found on several parts of his step-daughter’s bed sheets. In this regard, we find

that Bagby has failed to demonstrate that attacking the DNA evidence would have been a

sound strategy employed by trial counsel.

                        4. Failure to Confer with Bagby Prior to Trial

        Bagby also alleges that his trial counsel only visited him once in April 2009 when

he was first assigned the case. To support his contention, Bagby relies on McCarty v. State,

802 N.E.2d 959, 962 (Ind. Ct. App. 2004), trans. denied, where the defendant was mentally

disabled and his trial counsel failed to discover or investigate that fact; as such, he failed

to present that as a mitigating factor during sentencing. Id. at 964. On appeal from the

denial of his post-conviction relief, this court held that the trial counsel’s performance was

deficient because he met only once with McCarty, failed to interview his family members,

review the court file, obtain his education and mental health records, or consult with a

                                             18
mental health professional. Id. at 964-65. However, we find McCarty inapposite. At the

evidentiary hearing, trial counsel testified that he met with Bagby at least twice, and had

conferred with him by mail. Bagby’s blanket accusation that he was denied access to

information is without merit. Also, he fails to point out what harm befell him as result of

the few jail visits.

                     5. Failure to Know Exceptions to the Rape Shield Provision

         Lastly, Bagby argues that trial counsel was ineffective for failing to know the

exceptions of the Rape Shield Law expressed in Steward v. State, 636 N.E.2d 143, 149

(Ind. Ct. App. 1994), aff’d in relevant part, 652 N.E.2d 490, 499-500; and in Tague v.

Richards, 3 F.3d 1133, 1137 (7th Cir.1993).5

          At Bagby’s evidentiary hearing, trial counsel testified as follows

          Q: Are you aware of the [Steward] case [] ?
          A: Couldn’t tell you if I’d seen it or not.
          Q: If I may approach your Honor.
          Court: Sure. You don’t have to ask me every time, just approach.

          ****
          A: Your honor, rather than wasting time, whether I have read this case before
               or not. I could read it now and not be able to tell ya [sic]. In thirty years, I
               have read thousands of them. I assume it exits. I don’t assume you made
               this up.
          Q: And, um the same question, you can give me the same answer, but I’m just
               asking. Are you also aware of the [] [Tague] Case, which is a federal habeas
               case.


5
  We note that Indiana Evidence Rule 412 (1994) (amended 2013), also known as the Rape Shield Rule,
“incorporates the basic principles” of Indiana Code section 35-37-4-4. The Rule “is intended to prevent the victim
from being put on trial, to protect the victim against surprise, harassment, and unnecessary invasion of privacy, and,
importantly, to remove obstacles to reporting sex crimes.” Sallee v. State, 785 N.E.2d 645, 650 (Ind. Ct. App.
2003), trans. denied. Pursuant to Evid.R. 412, evidence of the past sexual conduct of a victim or a witness is not
admissible, except as:
         (2) evidence which shows that some person other than the defendant committed the act upon which the
         prosecution is founded[.]

                                                          19
       A:    This one I would probably say is a [S]even[th] [C]ircuit case, probably less
             likely. Um simply because of the venue from where it comes in the federal
             system, as opposed to the state system. That would be my best guess.

(P-C Tr. pp. 132-33).

      Bagby reasons that since trial counsel was unfamiliar with the cases, the jury was

only left with one inference that the source of A.R.’s hymeneal tear was caused by him. In

Steward, the victim accused four other men, apart from the defendant, of molesting her

around the same time that she had made accusations against the defendant. Steward, 636,

N.E 2d. at 149-150. Thus, there was a substantial question as to the identity of the

perpetrator. Id. Inasmuch as the State offered evidence that the complaining witness’s

behavior was consistent with a child who had been molested, and also that her behavior

improved after she accused the defendant of the molesting, we determined that the jury

should also have been informed that the complaining witness accused four others of

molesting her around the same time that the defendant had allegedly assaulted her. Id.

Thus, we concluded that it was error to permit the State to present corroborating evidence

linking the defendant to the act of molestation, while precluding the defendant from

presenting exculpatory evidence concerning the accusations of prior molestations by men

other than the defendant. Id.

      Steward addressed the concept of “partial corroboration,” which is the theory that

“once there is evidence that sexual contact did occur, the witness’s credibility is

automatically ‘bolstered.’” Id. at 149 (quoting Tague, 3 F.3d at 1138). “This bolstering

evidence invites the inference that because the victim was accurate in stating that sexual

contact occurred, the victim must be accurate in stating that the defendant was the

                                           20
perpetrator.” Id. “Therefore, in such cases, the defendant must be allowed to rebut this

inference by adducing evidence that another person was the perpetrator.” Id.

       Based on the holding of the Steward case, Bagby argues that trial counsel should

have presented other evidence showing that another person molested A.R. Specifically,

Bagby argues that his own potential list of witnesses would have testified to A.R.’s prior

sexual history, and their testimony should have been presented after Dr. Haendiges’

testimony regarding A.R.’s torn hymen. We disagree. To begin with, Bagby has failed to

establish that trial counsel he was unaware of the two cases. At best, the excerpt of the

evidentiary hearing showing that trial counsel could not recall the Steward or Tague cases

is inconclusive. At trial, counsel testified that he had read thousands of cases; thus, it was

more likely than not that he was aware of them. Even assuming that trial counsel was

unaware of the partial corroboration rule, at the evidentiary hearing, Bagby failed to call

any of the potential witnesses who could have testified to A.R.’s sexual history. In this

regard, he has failed to demonstrate what specific evidence would have been offered to

rebut the inference that he molested A.R. Lastly, we find that even if direct evidence could

have been furnished as to A.R.’s sexual history, the case enjoyed strong forensic support

in the form of Bagby’s sperm on A.R.’s bed sheets, the location where A.R. stated that she

the abuse occurred.

       In sum, Bagby fails to overcome the presumption that his trial counsel’s

performance was effective. Thus, he failed to satisfy his burden of showing that his trial

counsel’s performance fell below an objective standard of reasonableness and that there is

a reasonable possibility that the result of the proceeding would have been different if his

                                             21
counsel had not made the alleged errors. We therefore find that Bagby was not denied the

right to effective assistance of trial counsel.

                                       CONCLUSION

       Based on the foregoing, we conclude that the post-conviction court properly denied

Bagby’s petition for post-conviction relief.

       Affirmed.

MATHIAS, J. and CRONE, J. concur




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