MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Mar 10 2020, 6:04 am
court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Daniel Demaree                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Demaree,                                          March 10, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-861
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Stephenie Lemay-
Appellee-Respondent.                                     Luken, Special Judge
                                                         Trial Court Cause No.
                                                         55D01-1704-PC-721



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020             Page 1 of 12
                                      Statement of the Case
[1]   Daniel Demaree appeals the denial of his petition for post-conviction relief. We

      affirm.


                                                     Issue
[2]   Demaree raises numerous issues, only one of which is preserved for our review:

      whether the post-conviction court erred in rejecting his claim of ineffective

      assistance of trial counsel.


                               Facts and Procedural History
[3]   The circumstances of Demaree’s underlying convictions are as follows:


              Demaree and his wife, Tracy, had three children: Ba.D., a girl
              born on September 4, 1997, Br.D., a girl born on February 22,
              2001, and a boy, L.D. Demaree began touching Ba.D.
              inappropriately when she was about nine or ten years old. He
              was a truck driver, and the first time he touched her, they were
              on a “run” together in his truck in New York.


              The first time Demaree molested Ba.D. at home, she was in third
              grade. He pulled Ba.D. into his bedroom and made her take off
              her clothes and get on the floor, face down, with her legs spread
              open. Demaree’s pants were unzipped, and Ba.D. felt something
              happening to the inside of her “butt,” which really hurt. Ex. 12A
              p. 44–45. Afterwards, she felt something cold and wet on her
              “butt,” which Demaree wiped off with a rag. Ba.D. was unable
              to go to the bathroom afterwards “because it burned.” Id. at 49.


              Demaree continued to touch Ba.D. on many occasions. Most of
              the time, he touched her “butt” with his penis. Tr. p. 362, 365–

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 2 of 12
        66. On one occasion, he touched her vagina with his penis and
        moved his penis around. More than once, Demaree touched the
        inside of Ba.D.’s vagina with his tongue, causing her pain. These
        incidents occurred on the floor in Demaree’s bedroom. Before
        the acts, Demaree put lotion on his penis; afterwards, he always
        put the rags he used to wipe himself and Ba.D. in the washing
        machine immediately. The last time Demaree molested Ba.D.
        was about a month before her eleventh birthday. As a result of
        the molestations, Ba.D. developed hemorrhoids and a rash.


        Ba.D.’s younger sister, Br.D., was usually home when the
        molestations occurred. Ba.D. knew that Demaree also molested
        her sister, because Br.D. went to Ba.D. afterwards, crying, and
        told her what had happened. Demaree touched Br.D.’s “front
        private part” with his pinkie and his tongue. Tr. p. 408–09. He
        also touched her “butt” with his “dick” and his tongue; at one
        point putting his “dick” inside Br.D.’s “butt,” causing her pain.
        Id. at 410, 421. These incidents also occurred in Demaree’s
        bedroom.


        On occasions, Demaree told the girls that they would have to
        choose which one would go with him, or he would take both of
        them. He gave Ba.D. money to do things with him and told her
        not to tell; he gave Br.D. licorice as a bribe.


Demaree v. State, Cause No. 55A01-1005-CR-295, *1 (Ind. Ct. App. Feb. 10,

2011) (Demaree I). The State charged Demaree with numerous child molesting

related offenses. After a jury trial, the trial court entered judgments of

conviction determining that the jury had found Demaree guilty of five counts of

child molesting, all Class A felonies. The trial court imposed a total sentence of

120 years.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 3 of 12
[4]   Demaree appealed, challenging the admission of certain evidence and the

      appropriateness of his sentence pursuant to Appellate Rule 7(B). The Court

      affirmed Demaree’s convictions and sentence. Id. at *4.


[5]   On April 5, 2017, Demaree filed a petition for post-conviction relief. He later

      amended the petition with leave of court, and the State filed a response. The

      post-conviction court held an evidentiary hearing over several nonconsecutive

      days. On March 21, 2019, the trial court issued findings of fact, conclusions

      thereon, and an order denying Demaree’s petition. This appeal followed.


                                   Discussion and Decision
                                       1. Standard of Review
[6]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Rose v.

      State, 120 N.E.3d 262, 266 (Ind. Ct. App. 2019), trans. denied. A petitioner

      bears the burden of establishing an entitlement to relief during post-conviction

      proceedings. Pierce v. State, 135 N.E.3d 993, 1002 (Ind. Ct. App. 2019). The

      petitioner has an “affirmative duty to present evidence sufficient” to prove a

      right to relief and “may not rely on matters outside the record of the post-

      conviction hearing.” Henry v. State, 170 Ind. App. 463, 466, 353 N.E.2d 482,

      484 (1976).


[7]   “A petitioner who has been denied post-conviction relief faces a rigorous

      standard of review.” DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). We will

      not disturb the post-conviction court’s denial of relief unless the evidence is

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 4 of 12
       without conflict and leads to but one conclusion, and the post-conviction court

       reached the opposite conclusion. West v. State, 938 N.E.2d 305, 309 (Ind. Ct.

       App. 2010), trans. denied. We accept the post-conviction court’s findings of fact

       unless they are clearly erroneous. Id. Further, we consider only the probative

       evidence and reasonable inferences therefrom that support the post-conviction

       court’s determination, and we will not reweigh the evidence or judge witness

       credibility. Id.


[8]    Demaree is proceeding pro se. Pro se litigants without legal training are held to

       the same standard as trained counsel and are required to follow procedural

       rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

       Consequently, pro se litigants must be prepared to accept the consequences for

       failing to follow the rules. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App.

       2016), trans. denied.


                                                  2. Waiver
[9]    In the “Statement of the Issues” and “Summary of the Argument” sections of

       his appellant’s brief, Demaree raises claims pertaining to his 120-year sentence,

       ineffective assistance of trial counsel, ineffective assistance of appellate counsel,

       and newly discovered evidence. Appellant’s Br. pp. 5-8, 19-21. By contrast, the

       “Argument” section of Demaree’s brief substantively addresses only his claim

       of ineffective assistance of trial counsel.


[10]   We will consider Demaree’s claim of ineffective assistance of trial counsel, but

       Demaree has waived his other claims by failure to provide cogent argument

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 5 of 12
       supported by citation to authority. See Ind. Appellate Rule 46(A)(8)(a)

       (allegations of error must be supported by “cogent reasoning” and citation to

       authorities and the record); see also Bigler v. State, 732 N.E.2d 191, 196 (Ind. Ct.

       App. 2000) (claim waived because it was presented in one sentence, without

       argument and citation to authority), trans. denied.


[11]   Before we turn to Demaree’s allegations of ineffective assistance of trial

       counsel, we note that prior to and during the evidentiary hearing, he did not ask

       the post-conviction court to take judicial notice of the trial record or the record
                                            1
       on appeal from Demaree I. In addition, during the post-conviction hearing he

       did not attempt to offer documents from the trial record or the record on appeal,

       or any other documentary evidence, as exhibits. Instead, Demaree, who

       participated in the hearing by telephone, purported to read from the transcripts

       while questioning witnesses.


[12]   Earlier in this appeal, the Court granted Demaree’s motion to transfer the

       record on appeal from Demaree I to the current appeal, but denied his motion to
                                   2
       take judicial notice. We will not review the post-conviction court’s judgment




       1
         The Chronological Case Summary indicates that Demaree filed a number of documents with the post-
       conviction court on November 7, 2017, well before the special judge took jurisdiction over this case. During
       the evidentiary hearing, he did not ask the post-conviction court to take judicial notice of those documents or
       otherwise seek to authenticate them as exhibits. Also, in Demaree’s proposed findings of fact and
       conclusions of law, which he submitted after the evidentiary hearing had concluded, he asked the post-
       conviction court to take judicial notice of only one potential juror’s statement in the voir dire transcript.
       2
         In his appellant’s brief, Demaree renews his request for this Court to take judicial notice of the trial
       transcript and the record from Demaree I. We deny his request.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020                         Page 6 of 12
       using evidence that was not presented to the post-conviction court, so we have

       not considered the appellate record from Demaree I in this appeal.


                        3. Ineffective Assistance of Trial Counsel
[13]   We analyze claims of ineffective assistance of trial counsel according to the

       two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

       80 L. Ed. 2d 674 (1984). As the Indiana Supreme Court has explained:


               First, we require the defendant or petitioner to show that, in light
               of all the circumstances, the identified acts or omissions of
               counsel were outside the wide range of professionally competent
               assistance. This showing is made by demonstrating that
               counsel’s performance was unreasonable under prevailing
               professional norms. Second, we require the defendant or
               petitioner to show adverse prejudice as a result of the deficient
               performance. We will find prejudice when the conviction or
               sentence has resulted from a breakdown of the adversarial
               process that rendered the result unreliable.


       Emerson v. State, 695 N.E.2d 912, 918 (Ind. 1998) (citations omitted). “[W]e do

       not need to determine whether counsel’s performance was deficient before

       examining the prejudice suffered by the defendant as a result of the alleged

       deficiencies.” Little v. State, 819 N.E.2d 496, 501 (Ind. Ct. App. 2004), trans. denied.


[14]   “Judicial scrutiny of counsel’s performance must be highly deferential.”

       Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. As a result, “counsel is strongly

       presumed to have rendered adequate assistance and made all significant

       decisions in the exercise of reasonable professional judgment.” Id. at 690, 104

       S. Ct. at 2066. Whether a defendant received ineffective assistance of counsel is

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 7 of 12
       a fact-sensitive determination requiring review of the original trial record.

       Mitchell v. State, 946 N.E.2d 640, 644 (Ind. Ct. App. 2011), trans. denied.


                                               a. Jury Selection

[15]   Demaree argues that his trial counsel should have sought to remove several

       potential jurors from the panel, claiming they demonstrated bias against him.

       Specifically, one of the potential jurors, a schoolteacher, allegedly stated she

       knew that Demaree brought a gun to school as a youth. Also, two other

       potential jurors were allegedly married to one another.


[16]   Demaree did not submit the jury selection transcript to the post-conviction

       court during the evidentiary hearing or ask the court to take judicial notice of

       the transcript. As a result, we are unable to review his claim. See Mitchell, 946

       N.E.2d at 645 (panel unable to address Mitchell’s claim of ineffective

       assistance; Mitchell did not present trial record during post-conviction hearing).

       In any event, during the post-conviction hearing, Demaree’s trial attorney

       stated, “if I thought we had a biased juror, then I would have either asked the

       Judge to strike her for cause or exercised a peremptory.” Tr. Vol. 2, p. 46.

       Demaree has failed to demonstrate that the post-conviction court erred on this

       issue.


                                            b. Conflict of Interest

[17]   Demaree claims his trial counsel revealed during jury selection that he could

       not be impartial given the nature of the case, which established a conflict

       between counsel and his client. Once again, Demaree did not provide the jury

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 8 of 12
       selection transcript to the post-conviction court during the hearing. Further, he

       did not ask his trial attorney about this issue during the post-conviction hearing.

       In the absence of any evidence to support his claim, the post-conviction court

       did not err in rejecting it.


                                        c. Jury Selection Transcript

[18]   Demaree’s trial counsel filed the Notice of Appeal for his direct appeal.

       Demaree alleges that when counsel requested a transcript of the trial, he

       explicitly directed the court reporter to not prepare a transcript of the jury

       selection process. Demaree argues that counsel’s failure to request a complete

       transcript of the trial hindered his appellate counsel and deprived him of his

       constitutional rights.


[19]   Demaree did not submit the Notice of Appeal or the jury selection transcript to

       the post-conviction court during the hearing or ask the court to take judicial

       notice of those documents. Demaree’s trial counsel testified he did not request

       a jury selection transcript because he “didn’t see any appealable issues arising

       out of voir dire.” Id. at 35. Counsel made a strategic decision as to what claims

       were valid, and Demaree has failed to present evidence to establish that

       counsel’s decision was deficient. He has failed to demonstrate the post-

       conviction court erred.


                                          d. Exculpatory Evidence

[20]   Demaree claims his trial counsel failed to obtain his mobile phone records and

       driver log from the prosecutor, and those items would have established that he

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 9 of 12
       was out of the state on the date that one of the molestations was alleged to have

       occurred. “While it is undisputed that effective representation requires

       adequate pretrial investigation and preparation, it is well settled that we should

       resist judging an attorney’s performance with the benefit of hindsight.”

       McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013). As a result,

       “establishing failure to investigate as a ground for ineffective assistance of

       counsel requires going beyond the trial record to show what investigation, if

       undertaken, would have produced.” Id. at 201.


[21]   Demaree did not offer the phone records or driver log as exhibits at the post-

       conviction hearing. Without them, the post-conviction court, and this Court,

       are unable to determine whether the outcome of the trial would have changed if

       counsel had timely obtained those documents for use at trial. Demaree has

       failed to establish reversible error.


                                       e. Transcript of Child’s Interview
                                                             3
[22]   For his final substantive point of error, Demaree claims his trial counsel should

       have objected to the admission into evidence of a transcript of child’s interview

       at “Susie’s Place.” Appellant’s Br. p. 30. He claims that during the interview,

       the child identified a date when Demaree molested her, but his phone records

       and driver log would have demonstrated that he was out of the state on that



       3
        As an additional claim of ineffective assistance of trial counsel, Demaree also argues, in passing, that trial
       counsel should have sought to prove “the identities of [an] unknown male and unknown individual.”
       Appellant’s Br. p. 25. He provides no cogent argument or citation to authority in support of this argument,
       and it is waived. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020                      Page 10 of 12
       date. As a result, Demaree claims the transcript would not have been admitted,

       if counsel had objected to it, because it contained falsehoods. When a

       petitioner alleges ineffective assistance of counsel for failure to raise an

       objection, the petitioner must demonstrate that, had a proper objection been

       made, “the trial court would have had no choice but to sustain the objection.”

       McAfee v. State, 459 N.E.2d 1186, 1188 (Ind. 1984).


[23]   Once again, Demaree did not submit the phone records, driver log, or transcript

       to the post-conviction court, thereby failing to provide any evidence to support

       his claim. Further, even if Demaree had provided the missing documents to the

       post-conviction court, and even if we were to assume for the sake of argument

       that statements in the interview transcript were inconsistent with information in

       Demaree’s driver log and phone records, any inconsistency would not

       necessarily have resulted in the exclusion of the transcript from evidence.

       “[C]onflicts [in the evidence presented] serve as a basis for attacking the

       credibility of the witnesses and the weight to be given their testimony,” but the

       resolution of such conflicts is a question for the jury. Taylor v. State, 171 Ind.

       App. 476, 477, 358 N.E.2d 167, 169 (1976). The trial court thus may have

       allowed the interview transcript into evidence and allowed the jury to resolve

       any inconsistencies. We cannot conclude that the trial court would have had

       no choice but to sustain counsel’s objection to the transcript, if one had been

       made. Demaree has failed to establish reversible error.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 11 of 12
                                                Conclusion
[24]   For the reasons stated above, we affirm the judgment of the trial court.


[25]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-861 | March 10, 2020   Page 12 of 12
