MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
                                                                  Mar 03 2017, 6:23 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott King                                               Curtis T. Hill, Jr.
Russell W. Brown, Jr.                                    Attorney General of Indiana
Scott King Group
                                                         George P. Sherman
Merrillville, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alric Bolt,                                              March 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1602-PC-383
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1103-PC-8



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017        Page 1 of 14
                                          Case Summary
[1]   Appellant-Petitioner Alric Bolt (“Bolt”) appeals the denial of his petition for

      post-conviction relief, which challenged his convictions for Child Molesting.

      He presents the issue of whether he was denied the effective assistance of trial

      counsel. We affirm.



                            Facts and Procedural History
[2]   On direct appeal, a panel of this Court recited the relevant facts as follows:

              On July 24, 2007, forty-year-old Bolt insisted that his girlfriend’s
              eleven-year-old daughter, M.W., take a shower with him. While
              in the shower, Bolt washed M.W. with his hands. He touched
              M.W.’s breasts and genital area. Bolt also placed a finger inside
              of M.W.’s labia. He washed M.W.’s buttocks and inner thighs.
              Bolt then told M.W. to wash him. M.W. began to wash his chest
              but he moved her hand to his penis and made her wash it. While
              this occurred, Bolt closed his eyes and tilted back his head. Bolt
              then said he was done and left the shower. When asked about
              the incident by Mother, Bolt claimed that he had just washed
              M.W.’s hair.


              On September 5, 2007, the State charged Bolt with two counts of
              Class C felony child molesting. On July 24, 2008, the State
              added a count of Class A felony child molesting. Following a
              three-day jury trial which began on May 4, 2009, Bolt was found
              guilty as charged. On May 28, 2009, the trial court sentenced
              Bolt to concurrent terms of five years on each of the Class C
              felony child molesting and thirty-five years for the Class A felony
              child molesting.



      Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 2 of 14
      Bolt v. State, No. 20A03-0907-CR-335, slip op. at 1 (Ind. Ct. App. Feb. 23,

      2010).


[3]   On direct appeal, Bolt alleged that the trial court had abused its discretion by

      admitting photographs Bolt had taken of M.W. that showed M.W. in various

      stages of undress. See id. He also alleged that the State committed prosecutorial

      misconduct. Bolt’s convictions were affirmed and the Indiana Supreme Court

      denied Bolt’s petition for transfer.


[4]   On March 8, 2011, Bolt filed a pro-se petition for post-conviction relief. With

      assistance of counsel, he amended his petition. An evidentiary hearing was

      conducted on July 9, 2015. On January 21, 2016, the post-conviction court

      issued findings of fact and conclusions thereon and an order denying Bolt post-

      conviction relief. He now appeals.



                                 Discussion and Decision
                                        Standard of Review
[5]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

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

      Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 3 of 14
      post-conviction court. Id. A post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error, that which leaves us with a

      definite and firm conviction that a mistake has been made. Id. In this review,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

      judge of the weight of the evidence and the credibility of witnesses. Id.


                              Effectiveness of Trial Counsel
[6]   Bolt contends he was denied the effective assistance of trial counsel in three

      respects: trial counsel (1) failed to confront M.W. with prior inconsistent

      statements; (2) failed to challenge a jury instruction on the elements of child

      molesting; and (3) failed to lodge proper objections when M.W.’s aunt testified

      concerning M.W.’s revelation of having been molested.


[7]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

      Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

      of ineffective assistance under the two-part test announced in Strickland. Id. To

      prevail on an ineffective assistance of counsel claim, a defendant must

      demonstrate both deficient performance and resulting prejudice. Dobbins v.

      State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

      Deficient performance is that which falls below an objective standard of

      reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

      1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

      “there is a reasonable probability that, but for counsel’s unprofessional errors,


      Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 4 of 14
      the result of the proceeding would have been different. A reasonable

      probability is a probability sufficient to undermine confidence in the outcome.”

      Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

      1996). The two prongs of the Strickland test are separate and independent

      inquiries. Strickland, 466 U.S. at 697. 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.” Id.


[8]   We “strongly presume” that counsel provided adequate assistance and

      exercised reasonable professional judgment in all significant decisions. McCary

      v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

      considerable discretion in the choice of strategies and tactics. Timberlake v.

      State, 753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based

      upon the facts known at the time and not through hindsight. State v. Moore, 678

      N.E.2d 1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions

      requiring reasonable professional judgment even if the strategy in hindsight did

      not serve the defendant’s interests. Id. In sum, trial strategy is not subject to

      attack through an ineffective assistance of counsel claim, unless the strategy is

      so deficient or unreasonable as to fall outside the objective standard of

      reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[9]   Initially, Bolt complains that his trial counsel, having selected a defense strategy

      of attacking the complainant’s credibility, nevertheless “failed to confront and

      impeach M.W. with prior inconsistent statements.” Appellant’s Br. at 15.

      According to Bolt, M.W. made inconsistent statements: first, when she stated in

      Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 5 of 14
       her deposition that Bolt stopped washing at her knees but claimed at trial that

       he touched her vagina, and second, when she stated in her deposition that her

       sisters were gone to the library for 15 minutes and later testified that they were

       gone for one hour.


[10]   Despite Bolt’s suggestion of changing allegations, the essence of M.W.’s

       testimony – both at deposition and at trial – was that Bolt had touched her

       breasts and vagina. In the deposition, some categorization of body parts took

       place. Defense counsel asked if Bolt had washed M.W.’s breasts and asked if

       there was “any other part” washed. (Deposition Tr. at 48.) M.W. testified that

       Bolt had washed her “butt” and stomach; defense counsel then asked, in

       isolation, about legs:

               Question: Did he wash your legs?


               M.W.: Yes.


               Question: How far up your legs did he go?


               M.W.: He did about to my knees.


               Question: He did it to your knees? Did he go up any farther
               than that?


               M.W.: No.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 6 of 14
       (Deposition Tr. at 49-50.) Defense counsel then asked if there was “any other

       part” washed and M.W. responded that she couldn’t think of any. (Deposition

       Tr. at 50.)


[11]   Thereafter, M.W. testified that Bolt “stuck his hand in between [her] legs” and

       this area was in the “front part” of the “butt.” (Deposition Tr. at 79-80.) She

       demonstrated and described the motion of Bolt’s fingers. Looking at the

       deposition testimony as a whole, it is apparent that M.W. considered her

       vaginal area to be part of her “butt.” Moreover, M.W.’s testimony does not

       support Bolt’s suggestion that M.W. once claimed Bolt had confined his

       touching to the area below her knees. M.W. claimed in her deposition that Bolt

       rubbed between her legs; at trial, she testified to the same conduct but added

       more specificity. We find no blatant inconsistencies unaddressed by defense

       counsel.


[12]   When she was deposed, M.W. was asked “how long [the sisters] were at the

       library” and she responded “fifteen minutes.” (Deposition Tr. at 45.) At trial,

       she testified that it was a fifteen-minute walk from the house to the library and

       that, in total, her sisters had been gone one hour. At the post-conviction

       hearing, trial counsel testified that he did not focus on the time discrepancy

       because “whether it was 20 minutes or one hour,” there was time for the alleged

       act to occur. (P.C.R. Tr. at 116.) It is also noteworthy that the eldest of the

       sisters testified at trial that Bolt told her to take the younger siblings to the

       library and to be back “no sooner than six.” (Tr. at 384.) She specified that

       they were gone for about one hour. In these circumstances, defense counsel’s

       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 7 of 14
       decision not to attack the timeline falls within an objective standard of

       reasonableness.


[13]   According to Bolt, his trial counsel should have challenged M.W.’s credibility

       by calling her former Sunday School teacher to testify. Apparently, the teacher

       was listed as a potential witness, and she allegedly knew that M.W. had mis-

       represented her attendance record in order to obtain a prize, a cross necklace.

       Bolt does not explain how this evidence would have been admissible in light of

       Indiana Evidence Rule 608(b) (providing that, generally, “extrinsic evidence is

       not admissible to prove specific instances of a witness’s conduct in order to

       attack or support the witness’s character for truthfulness”).


[14]   Next, Bolt contends that his defense counsel acquiesced when the trial court

       gave inadequate jury instructions as to the State’s burden of proof. Bolt was

       charged with three violations of Indiana Code Section 35-42-4-3, one as a Class

       A felony and two as Class C felonies. At that time, this statute provided in

       relevant part:

               A person who, with a child under fourteen (14) years of age,
               performs or submits to sexual intercourse or deviate sexual
               conduct commits child molesting, a Class B felony. However,
               the offense is a Class A felony if it is committed by a person at
               least twenty-one years of age. . . .


               A person who, with a child under fourteen (14) years of age,
               performs or submits to any fondling or touching, of either the
               child or the older person, with intent to arouse or to satisfy the
               sexual desires of either the child or the older person, commits
               Child Molesting, a Class C felony.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 8 of 14
       Final Instructions 2 through 6 recited the statutory language and instructed the

       jury that conviction of a Class C felony required the State to prove Bolt (1)

       performed or submitted to fondling or touching of M.W. (2) with the intent to

       arouse or satisfy the sexual desires of Bolt or the victim (3) when M.W. was

       under age 14 and that conviction of a Class A felony required the State to prove

       Bolt (1) performed or submitted to deviate sexual conduct with M.W. (2) when

       M.W. was under age 14 and (3) Bolt was at least 21 years of age.


[15]   Instructions 2 through 6 do not address the mens rea requirement. Bolt directs

       our attention to Louallen v. State, 778 N.E.2d 794, 797 (Ind. 2002), wherein our

       Indiana Supreme Court found “knowing” conduct to be the appropriate

       standard of culpability for a child molesting offense and clarified that, although

       the child molesting statute was silent as to a mens rea requirement: “we … have

       nevertheless long held that criminal intent is an element of the offense.”


[16]   Bolt then argues that his trial counsel performed deficiently when he did not

       proffer an instruction similar to the Pattern Jury Instruction given in Louallen,

       specifically:

               To convict the defendant, the State must have proved each of the
               following elements beyond a reasonable doubt: The Defendant
               (1) knowingly or intentionally (a) performed any fondling or
               touching of [V.K.], (b) with the intent to arouse or satisfy the
               sexual desires of Randy S. Louallen (2) when [V.K.] was a child
               under fourteen (14) years of age.


       Id. At 795-96. Our Supreme Court held that the trial court did not err when it

       instructed the jury that the defendant could be convicted under Ind. Code § 35-
       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 9 of 14
       42-4-3(b) for “knowingly or intentionally” fondling the victim with intent to

       arouse or gratify himself or the child. Louallen, 778 N.E.2d at 798. However,

       the Court did not instruct trial courts to use a singular instruction in the future

       combining both the statutory elements and the mens rea requirement. Rather,

       the Court re-iterated that instructions are to be read as a whole. Id. at 797

       (citing Cardwell v. State, 516 N.E.2d 1083, 1087 (Ind. Ct. App. 1987)).


[17]   In Cardwell, the defendant in a child molesting case had objected to an

       instruction that tracked statutory language but failed to advise the jury that

       “knowingly and intentionally [was] an element of the offense.” 516 N.E.2d at

       1086. Finding no reversible error, the Court first observed:

               Regardless of the fact that there is no specific mention of any
               criminal intent or mens rea in the relevant portion of the child
               molesting statute, mens rea is an element of the crime of child
               molesting. . . . Thus, the question is whether the instructions,
               when read together as a whole, informed the jury that Cardwell’s
               conduct must have been knowing or intentional in order for him
               to be guilty of child molesting.


       Id. at 1086-87 (internal citations omitted). The Court noted that the instruction

       at issue, tracking statutory language, referred to deliberate injurious conduct

       and would in its plain meaning be understood by the jury as including criminal

       intent. Id. at 1087. The jury had been given a separate instruction defining

       “knowingly” and “intentionally.” Also, the jury had been instructed to

       consider the instructions as a whole. See id. Considered as a whole, the




       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 10 of 14
       instructions had informed the jury that Cardwell must have performed deviate

       sexual conduct with the victim knowingly. Id.


[18]   In light of this background, we evaluate counsel’s performance with regard to

       jury instruction. He neither objected to the elements instruction given nor

       tendered his own. However, the record discloses that, as in Cardwell, the jury

       was adequately informed that Bolt must have performed deviate sexual conduct

       with M.W. knowingly. This is so for like reasons: the statutory language

       referenced deliberate injurious conduct and the jury would be led to understand

       that Bolt must have acted with criminal intent; Final Instruction 7 informed the

       jury that a person engages in conduct “knowingly” if, when he engages in the

       conduct, he is aware of a high probability that he is doing so; and the jury was

       instructed to consider the instructions as a whole. Additionally, the Amended

       Information was read to the jury; in each count, the State alleged that Bolt

       performed his conduct knowingly. Bolt has not demonstrated that his trial

       counsel performed deficiently in acquiescing to the jury instruction.


[19]   Finally, Bolt claims that his trial counsel should have exerted additional efforts

       – beyond his hearsay objections and argument – to limit the testimony of

       M.W.’s aunt, Rhonda Hill (“Hill”) in the State’s case-in-chief and rebuttal.

       During its case-in-chief, the State elicited testimony from Hill that she had

       called the police. When Hill began a response with “My niece had told me

       that,” defense counsel objected and a bench conference ensued. (Tr. at 285.)

       The State argued that Hill’s anticipated response was not hearsay, as it was not

       offered for the truth of the matter asserted, but to show why the criminal

       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 11 of 14
       investigation was initiated. The trial court instructed the State to take a

       “minimalist” approach and ultimately, Hill testified: “M.W. had told me she

       had been molested.” (Tr. at 287.) Later, in response to a juror’s question, Hill

       clarified that M.W. had not actually used the word “molested.” (Tr. at 296.)


[20]   Bolt cites Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) for the proposition that

       “course of investigation testimony is excluded from hearsay only for a limited

       purpose: to ‘bridge gaps in the trial testimony that would otherwise

       substantially confuse or mislead the jury.’” (internal citation omitted.)

       According to Bolt, the testimony was unnecessary in his case and the prejudice

       to him is apparent because a juror was prompted to seek clarification. In

       Blount, our Indiana Supreme Court acknowledged that the use of course-of-

       investigation evidence may be abused and there is a risk that the jury will rely

       upon the out-of-court assertion as substantive evidence of guilt. Id. at 566.

       Nevertheless, where there is a statement asserting a fact susceptible of being

       true or false, and there is a non-hearsay purpose for the proffered statement, its

       probative value is to be weighed against the risk of unfair prejudice. Id. at 567.


[21]   Here, the statement as to Bolt’s conduct was susceptible of being true or false

       but was offered to show why the police investigation was initiated. It is

       unfortunate that the word “molested” was used as it clearly has potential to

       heighten prejudice. However, Hill clarified that M.W. did not actually use that

       word. Although it would have been preferable to have the word entirely

       excluded from Hill’s testimony, trial counsel was not obliged to ensure that Bolt



       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 12 of 14
       was tried in a proceeding free of all error and prejudice. Autrey, 700 N.E.2d at

       1141.


[22]   During the rebuttal portion of the trial, Hill was asked what M.W. had told her,

       and defense counsel again lodged a hearsay objection. The State argued that,

       under Evidence Rule 801(d), a statement is not hearsay if it is a prior consistent

       statement offered to rebut an express or implied charge that the declarant

       recently fabricated it. Bolt’s objection was overruled and Hill testified:


               M.W. had told me that Alric had made her take a shower with
               him, and that he touched her all over. She went around her
               breast area and down between her legs. . . . M.W. rubbed her
               hands acrossed [sic] her chest and down between her legs for me.


       (Tr. at 447.) Bolt now argues that the foundation for 801(d) admission was not

       met and his defense counsel should have objected accordingly. Bolt claims that

       there was no express or implied charge that M.W. fabricated her allegations.

       Our review of the record leads us to disagree. Bolt called M.W.’s mother

       (“Mother”) to testify in his defense. Mother testified that she had questioned

       M.W. and that M.W. had denied touching Bolt and also denied that Bolt

       touched her. According to Mother, Bolt had “forced her to get in the shower

       with him.” (Tr. at 436.) She claimed to have been told only that Bolt washed

       M.W.’s hair. In light of this testimony, defense counsel’s omission to provide

       additional argument concerning the admission of rehabilitative testimony was

       within the realm of reasonable professional judgment.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 13 of 14
                                               Conclusion
[23]   Bolt has not demonstrated that he was denied the effective assistance of trial

       counsel.


[24]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1602-PC-383 | March 3, 2017   Page 14 of 14
