Pursuant to Ind.Appellate Rule 65(D),                                           Nov 12 2013, 5:33 am

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:

JAMES D. CRUM                                   GREGORY F. ZOELLER
Coots, Henke & Wheeler, P.C.                    Attorney General of Indiana
Carmel, Indiana
                                                ELLEN H. MEILAENDER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOHN R. TYRRELL,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 29A02-1301-PC-11
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                           The Honorable Daniel J. Pfleging, Judge
                    Cause Nos. 29D02-1111-PC-16469, 29D02-0703-FA-31



                                     November 12, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
          John R. Tyrrell appeals the denial of his petition for post-conviction relief. The

sole issue for our review is whether the trial court erred in denying his petition. We

affirm.

                          FACTS AND PROCEDURAL HISTORY

          In January 2006, thirteen-year-old P.C., who lived with her family in Fishers,

began corresponding online with thirty-year-old Tyrrell, who lived in South Carolina.

During the course of their correspondence, Tyrrell, who knew that P.C. was only thirteen

years old, initiated graphic sexual conversations and told her that he wanted to engage in

both oral and vaginal intercourse with her. In February 2006, Tyrrell told P.C. that he

would be passing through Indiana on his way to a new job in Minnesota and could meet

her at her house.

          On February 6, 2006, P.C. told her mother that she was sick, and her mother

allowed her to stay home from school by herself while her parents were at work. Tyrrell

called P.C. from a nearby payphone at 10:00 a.m. and arrived at her house shortly

thereafter. Tyrell and P.C. went to P.C.’s bedroom where they engaged in numerous acts

of vaginal and oral intercourse. At about noon, a cleaning service rang the doorbell at

P.C.’s house. P.C. ignored the doorbell until her mother telephoned her and told her to

open the door and let the cleaning people in the house. While P.C. opened the front door,

Tyrrell left out the back door.

          The following day at school, P.C.’s class watched a movie about someone “who

got cervical cancer from having sex at age 13.” Transcript at 238. P.C. “freaked out,”

and told her best friend what she had done with Tyrrell. Id. P.C. also contacted Tyrrell


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and expressed concern about whether he had any sexually transmitted diseases. Tyrrell

told P.C. to stop worrying and that he hoped to see her again “before summer and

hopefully uninterrupted this time.” State’s Exhibit 22a. In another online message,

Tyrrell told P.C., “sorry I had to jet out on you so quick. You’re great.” Id.

       The following year, in February 2007, P.C. told her school counselor and parents

what had happened with Tyrrell. Although P.C. only knew Tyrrell’s first name, the

police were able to identify and locate him based on information provided by P.C. and

computer evidence. The ensuing police investigation confirmed that Tyrrell transferred

to Minnesota and began a new job in February 2006. His bank records showed a series of

transactions tracing his route from South Carolina to Minnesota, including a transaction

at a gas station in Danville, Illinois. School records confirmed that P.C. was absent from

school on February 6, 2006, and a cleaning service confirmed that they arrived at P.C.’s

house at approximately 11:45 on February 6. Phone records for P.C.’s home showed an

incoming call to her house at 9:52 a.m. on February 6 from a payphone located a few

blocks from her house.

       The State charged Tyrrell with two counts of child molesting, one as a class A

felony and the other as a class C felony. The probable cause affidavit stated that Tyrrell

arrived at P.C.’s house at approximately 10:00 a.m., and was there for two to three hours.

Before trial, defense counsel filed a Notice of Alibi Defense stating that during the

charged date and time, Tyrrell was driving from South Carolina to Minnesota.

Specifically, defense counsel alleged that on February 6, 2006 at 12:32 p.m., Tyrrell was

at a gas station in Danville, Illinois.


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         At trial, the State offered the receipt from the Danville gas station into evidence.

The State also presented evidence that on February 6, 2006, Danville, Illinois was on

central time so that when it was 12:32 p.m. in Danville, it was 1:32 in Fishers, which

would have given Tyrrell sufficient time to drive from P.C.’s house to the gas station in

Danville. Tyrrell testified that he left South Carolina on February 5, 2013, and drove

straight through to Minnesota, stopping only for gas and snacks.                          He admitted

corresponding online with P.C. but denied engaging in sexual intercourse with her or

having ever seen her in person before the trial.

         The jury convicted Tyrrell of both counts. Tyrrell initiated a direct appeal and

then received permission to return to the trial court for a post-conviction proceeding

pursuant to the Davis/Hatton procedure.1 Tyrrell’s sole argument in his post-conviction

petition was that his trial counsel was ineffective because she failed to investigate his

alibi defense. Specifically, according to Tyrrell, when counsel disclosed Tyrrell’s credit

card receipt from the Danville gas station, counsel failed to realize the time zone

difference between Indiana and Illinois.                Counsel therefore provided documentary

evidence to the State, which allowed the State to prove Tyrrell could have been in Fishers

at the time of the crime. The post-conviction court concluded that it did not need to

determine whether counsel’s “action caused the representation to fall below an objective

level of reasonableness because the Petitioner has not satisfied his burden to show

prejudice.” Appellant’s Appendix at 301. Specifically, the trial court explained that it

could not say that the “discovery and presentation of the gas station receipt, even if it

1
         See Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977); Hatton v. State, 626 N.E.2d 442 (Ind.
1993).

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were unprofessional conduct, undermines the Court’s confidence in the outcome of trial.

The Petitioner has not met his burden in proving otherwise.” Id. Tyrrell appeals the

denial of his petition.

                                      DISCUSSION

       The issue is whether the post-conviction court erred in denying Tyrrell’s petition

for post-conviction relief. In reviewing the judgment of a post-conviction court, this

court considers only the evidence and reasonable inferences supporting its judgment.

Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole

judge of the evidence and the credibility of witnesses. Id. To prevail on appeal from the

denial of post-conviction relief, the petitioner must show that the evidence as a whole

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

conviction court. Id. Only where the evidence is without conflict and leads to but one

conclusion, and the post-conviction court has reached the opposite conclusion, will the

court’s findings or conclusions be disturbed as being contrary to law. Id. at 469.

       Here, Tyrrell argues that the post-conviction court erred in denying his petition

because his trial counsel was ineffective. To establish a claim of ineffective assistance of

counsel, a petitioner must demonstrate that counsel performed deficiently and the

deficiency resulted in prejudice. Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). If

we can dismiss an ineffective assistance of counsel claim on the prejudice prong, we need

not address whether counsel’s performance was deficient. Id. Rather, we may proceed to

evaluate whether the alleged error rendered the result of petitioner’s trial fundamentally

unfair or unreliable. Cooper v. State, 687 N.E.2d 350, 353 (Ind. 1997). When making


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this evaluation, we consider the totality of the evidence, taking into account the effect of

the alleged error. Id.

       We find the prejudice issue in this case to be dispositive and therefore do not

address the alleged deficiency in trial counsel’s performance. Specifically, our review of

the evidence reveals that the police located Tyrrell based on P.C.’s information and

computer evidence.       Tyrrell admitted that he corresponded with P.C. online.        The

evidence revealed that in early February 2006, Tyrrell was traveling from South Carolina

to Minnesota. At approximately 10:00 a.m., Tyrrell telephoned P.C. from a pay phone

near P.C.’s house. Tyrrell went to P.C.’s house where he and P.C. engaged in sexual acts

until the cleaning company arrived at the house. P.C. ignored the initial knock, but when

her mother called and told her to open the door for the cleaning company, Tyrrell slipped

out the back door and continued on to Minnesota.

       The following day, P.C. became upset at school after seeing a video about a girl

who had sexual intercourse at age thirteen and contracted a sexually transmitted disease

that led to cancer. P.C. told her best friend what she had done and contacted Tyrrell to be

sure he did not have any sexually transmitted diseases. Tyrrell told P.C. that he hoped to

see her again “before summer and hopefully uninterrupted this time.” State’s Exhibit

22a. In another online message, Tyrrell told P.C., “sorry I had to jet out on you so quick.

You’re great.” Id. Based upon this evidence, there is no reasonable probability that the

result of the trial would have been different had the credit card receipt never been

admitted into evidence. Tyrrell has failed to meet his burden to show that the evidence as




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a whole leads unerringly and unmistakably to a conclusion opposite that reached by the

post-conviction court.

       For the foregoing reasons, we affirm the post-conviction court’s denial of Tyrrell’s

petition for post-conviction relief.

       Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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