Opinion
24A-PC-342
10-23-2024
Guy Sheets, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent.
ATTORNEYS FOR APPELLANT Rebecca Gray Jonathan D. Harwell Harwell Gray Legal Counsel, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Adams Circuit Court The Honorable Chad E. Kukelhan, Judge Trial Court Cause No. 01C01-2106-PC-2
ATTORNEYS FOR APPELLANT Rebecca Gray Jonathan D. Harwell Harwell Gray Legal Counsel, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Najam, Senior Judge.
Statement of the Case
[¶1] Guy Sheets ("Sheets") appeals from the denial of his petition for postconviction relief. Sheets claims the post-conviction court should have vacated his three criminal convictions for child molestation and granted him a new trial because: (1) he presented newly-discovered evidence, in which the victim purportedly recanted her prior statements accusing Sheets of molesting her; and (2) his trial counsel rendered ineffective assistance by agreeing that the victim did not need to testify in person at trial. Concluding the post-conviction court did not err as to either claim, we affirm.
Facts and Procedural History
[¶2] R.S. is the daughter of Dustin Sheets ("Dustin") and Samantha Gumm ("Samantha"). Sheets is R.S.'s grandfather, through Dustin, and lived with R.S.'s step-grandmother, Angie Sheets ("Angie"), in rural Adams County.
[¶3] In August 2014, the Indiana Department of Child Services ("DCS") removed five-year-old R.S. from her parents' care and placed her with Sheets and Angie. R.S. stayed with them for six to eight months before returning to live with her parents. Next, in late 2016, R.S. and her parents moved in with Sheets and Angie. Samantha moved out several months later, but R.S. continued to live there, with Dustin. Even when R.S. did not live full-time in Sheets' home, she often stayed there on weekends.
[¶4] A few days before March 2, 2017, when R.S. was seven, she "started crying" as Dustin put her to bed. Trial Tr. Vol. II, p. 174. She became "hysterical" and did not want Dustin to close the door to their adjoining bedrooms. Id. She would not say why she was upset.
[¶5] On March 2, R.S. was at Samantha's home. She told her mother that Sheets had touched her inappropriately. R.S. was "frantic, hysterical, [and] crying." Id. at 161. Samantha took her to an emergency room for evaluation. At the hospital, R.S. told personnel that Sheets had touched her "in her private area" underneath her clothing, and he made her touch him. Id. at 184. Hospital employees found no sign of injuries, but they notified DCS.
[¶6] On March 6, 2017, Lorrie Freiburger ("Freiburger"), who is both a detective with the Fort Wayne Police Department and a forensic child interviewer, interviewed R.S. at the Fort Wayne Child Advocacy Center. Freiburger was not in uniform. She recorded the interview.
[¶7] R.S. told Freiburger she was "safe" at the time of the interview because Sheets was not allowed to come over to Samantha's home, where R.S. was living. Trial Tr. Vol. IV, State's Ex. 7 at 10:50. When Freiburger asked R.S. what she had told Samantha that led to the investigation, R.S. said Sheets would "make [her] hold this of his and he put his finger down there on hers." Id. at 15:10. R.S. gestured to her groin when referring to the parts of the bodies.
[¶8] Freiburger took out a drawing of a nude girl and a drawing of a nude boy. At Freiburger's request, R.S. circled the area on the girl where Sheets had touched her with his finger. Trial Tr. Vol. IV, State's Ex. 8. She circled the girl's groin and called it her "monkey." Id.; Trial Tr. Vol. IV, State's Ex. 7 at 16:40. R.S. said that Sheets had touched her monkey with his finger over fifty times. Id. at 16:55. R.S. further said Sheets put his finger "inside" and it "kind of hurt." Id. at 17:27.
[¶9] R.S. also said Sheets touched her for the first time when she was "five." Id. at 29:52. She was sleeping in Sheets' bed because she was afraid, and he reached down and touched the inside of her "monkey" with a finger. Id. at 19:17. R.S. suspected Sheets "thought [she] was asleep." Id. at 19:24.
[¶10] R.S. then said Sheets made her touch his "thing." Id. at 20:02. Freiburger asked R.S. to mark on the drawing of the nude boy what she meant by a "thing," and she circled the boy's groin. Trial Tr. Vol. IV, State's Ex. 9. She said Sheets had made her touch his thing under his clothes with her hand.
[¶11] R.S. described Sheets' thing as "hairy." Trial Tr. Vol. IV, State's Ex. 7, at 26:16. She also said Sheets would "shake" his thing while he made her touch it. Id. at 26:31. Sometimes, "gooey stuff" would come out of his thing. Id. at 24:11. On one occasion, when R.S. was six or seven, the "gooey stuff" got on her hands. Id. at 25:27.
[¶12] R.S. told Freiburger the last incident occurred a month prior to the interview. She repeated that Sheets touched her "monkey" over "fifty times." Id. at 21:39.
[¶13] After the Freiburger interview, R.S. was examined by Sara Coburn, a sexual assault nurse examiner. During the examination, R.S. told Coburn that Sheets had touched her "monkey" underneath her clothes. Trial Tr. Vol. IV, Exhibit 11. She also pointed between her labia majora and stated Sheets touched her "inside." Id. R.S. further stated Sheets had touched her inappropriately over fifty times, beginning when she was five. And R.S. told Coburn that Sheets made her hold his "thing." Id.
[¶14] The police questioned Sheets. He denied molesting R.S. but conceded R.S. had lived with him for long periods of time. He also agreed his wife worked nights. Sheets further stated that he had shared a bed with R.S. several times, and the only way he could have touched her inappropriately is if he "was asleep[.]" Trial Tr. Vol. IV, State's Ex. 13, at 8:22.
[¶15] On April 10, 2017, the State charged Sheets with one count of Level 1 felony child molesting and two counts of Level 4 felony child molesting. Count I alleged that Sheets penetrated R.S.'s sex organ with his finger. Count II alleged that Sheets fondled or touched R.S.'s sex organ. Count III alleged that Sheets submitted to touching of his sex organ by R.S. with intent to arouse or satisfy his sexual desires.
[¶16] On February 23, 2018, Sheets, by counsel, took a deposition of R.S., who had turned eight. R.S. stated she often slept in Sheets' bed while Angie was at work. And "[Sheets] touched [her] private part and he made [her] touch his." Trial Tr. Vol. II, p. 213. She clarified that she was referring to her vagina, and that Sheets touched her there beneath her clothes. When Sheets touched R.S.'s private part, he would do it for "a few minutes." Id. at 218. R.S. further clarified that she was referring to Sheets' penis as his private part, and that he "pull[ed] my hand" so that she touched him beneath his clothes. Id. at 217. She said she heard him snoring but did not know if he was asleep or awake. Next, Sheets' counsel asked R.S. how many times the molestations occurred. She initially agreed it happened more than ten times but less than 100. R.S. finally stated that the molestations occurred "a little over fifty" times, and every instance included him touching her genitals and making her touch his. Id. at 220.
[¶17] The parties stipulated to playing for the jury the recording of R.S.'s interview with Freiburger. They also agreed to read R.S.'s deposition to the jury. As a result, R.S. did not testify in person. The jury determined Sheets was guilty as charged, and the trial court sentenced him to forty-two years, with twelve years suspended to probation.
[¶18] Sheets appealed, raising a double jeopardy claim and further arguing that his sentence was inappropriate in light of the nature of his offenses and his character. The Court affirmed Sheets' convictions and sentence in a memorandum decision. Sheets v. State, Case No. 18A-CR-2027 (Ind.Ct.App. June 28, 2019).
[¶19] On June 2, 2021, Sheets petitioned for post-conviction relief. Among other grounds not relevant to this appeal, he alleged that he was entitled to a new trial because: (1) R.S. had recanted her prior statements; and (2) his attorney should have insisted that R.S. testify in person at trial.
[¶20] On November 16, 2021, the State took a deposition of R.S. ("post-conviction deposition"), who was twelve by that time. Sheets' counsel produced a transcript of R.S.'s previous deposition and asked her about it:
Q. Um, you were asked a question, do you remember what happened with grandpa [sic] Guy that made you talk to your mom. You responded, yes, he touched my private part, and he made me touch his. Do you recall making that statement?
A. No.
Q. Okay. You did - I'll just tell you . . .
A. I mean, it's . . .
Q. Okay, you made the statement. I'm at - my question today would be, is that a truthful statement?
A. Yes.
Q. That he touched your private part?
A. Yes.
Q. And he made you touch his private part?
A. Yes.
Q. Okay. That's true?
A. Yes.
Q. That happened?
A. Yes.
Q. Okay. Um, and you told the, uh, attorney that he touched you with his hand, correct?
A. Yes.
Q. Okay. And you were asked the question, did he touch you on top of your clothes or beneath your clothes. You said, beneath. Do you remember saying that?
A. Yeah.
Q. Okay. Did grandpa [sic] Guy touch you beneath your clothes?
A. Yes. I'm like - this is like a long time ago, so I'm just . . .
Q. Okay. And how many times, uh, did that occur?
A. Once.
Post-Conviction Transcript Vol. III, pp. 14-15.
[¶21] Next, Sheets' attorney and R.S. had the following conversation:
Q. Okay. Did he ever touch your private parts - that was a question asked to you, um, what would be - now you're older, but vagina area, um, with his fingers. You answered, like a few minutes. Did he - did her ever touch your private parts with his fingers?
A. What do you mean by that? Like . . .
Q. Did he ever digitally pen - did he penetrate your vagina area? Did he stick his fingers where they shouldn't be, or ...
A. No.
Q. No. Okay.Id. at 18-19.
[¶22] Later, Sheets' attorney asked R.S. about the one event, as follows:
Q. Okay. Okay. Um, tell me about the time that, um, you know, now that we've zoned in and there was one time of - of, uh, touching. Just tell me about what happened.
A. Well . . .
Q. If you can remember.
A. I went in there because I had a nightmare. And I laid in his bed. It was for like maybe an hour. And then like he was snoring. It was - he was snoring. And then he touched me and he made me touch him. And then that's just all that happened.
Q. And then did - do you remember, I mean, did he take his hand and grab your hand? Do you remember that?
A. Yeah.Id. at 25-26.
[¶23] R.S. also confirmed that her prior statement that she touched Sheets' penis under his clothes was a true statement. But she said Sheets was asleep and snoring the one time he touched her. R.S. further said that her prior statement, that he molested her fifty times, was false. She claimed she had said the abuse happened fifty times because she felt neglected by her mother and wanted to move back in with her.
[¶24] On August 11, 2023, the post-conviction court held an evidentiary hearing. R.S., who was fourteen, was the only witness. She and Sheets' counsel had the following discussion:
Q. Okay. Did Guy ever inappropriately touch you?
A. Yes.
Q. How many times?
A. Just once.
Q. Can you describe that time?
A. (sighs) I don't know how to put it into words. Um . . .
Q. I'll just interrupt and say take all the time you need. We're not in a hurry and just take the time you need.
A. I had gotten into his bed because I had a nightmare, and he was sleeping and I just kind of just crawls [sic] into his bed, and I went to sleep and I felt hands on me, and I wasn't sure what was going on, and like it just slipped down my, uh, waistband, if that is the right word, and that's all I can remember.
Q. Do you remember if he took your hand and put it on his, um, penis?
A. I don't remember.
Q. Do you remember if he was awake or not?
A. He was most definitely asleep. He was . . .
Q. Was he snoring?
A. Yes.
Q. In fact, you remember talking to various individuals even when you were seven about snoring? That he was snoring. Do you remember that?
A. Yes.
Q. Do you remember telling individuals that, um, these actions were over [sic] 50 times?
A. Yes, I remember saying that.
Q. Is that true?
A. No.
Post-Conviction Tr. Vol. II, p. 11. R.S. further said her friends had showed her pornography, which is where she came up with the details she discussed during her interview with Freiburger. She reiterated that Sheets touched her only once.
[¶25] The post-conviction court issued findings of fact and conclusions of law thereon denying Sheets' petition for post-conviction relief. As for R.S.'s purported recantation of her prior statements, the court concluded the new evidence "would merely be used to impeach her other testimony[,]" was "less than credible[,]" and "would not produce a different result at a retrial." PostConviction Appellant's App. Vol. 2, p. 50. And regarding trial counsel's choice to not seek R.S.'s testimony at trial, the court stated, "the decision was one of strategy and did not fall below an objective standard of reasonableness." Id. at 55.
[¶26] Sheets next filed a motion to correct error, which the post-conviction court denied. This appeal followed.
Issues
[¶27] Sheets raises two issues, which we restate as:
I. Whether the post-conviction court erred in rejecting Sheets' claim of newly-discovered evidence; and
II. Whether the post-conviction court erred in rejecting Sheets' claim of ineffective assistance of trial counsel.
Discussion and Decision
[¶28] Post-conviction procedures do not provide a petitioner with a "super-appeal." Dickens v. State, 997 N.E.2d 56, 59 (Ind.Ct.App. 2013), trans. denied. "Postconviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019). The petitioner has the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
[¶29] Sheets failed to carry his burden of proof in the post-conviction court. As a result, he appeals from a negative judgment and "must show that 'the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court.'" Conley v. State, 183 N.E.3d 276, 282 (Ind. 2022) (quoting Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)). "When a defendant fails to meet this 'rigorous standard of review,' we will affirm the post-conviction court's denial of relief." Gibson, 133 N.E.3d at 681 (quoting DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001)).
[¶30] Indiana Trial Rule 52(A) provides that during appellate review of cases tried without a jury, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Put differently, "[f]or factual matters, we examine only the probative evidence and reasonable inferences that support the postconviction court's determination and do not reweigh the evidence or judge the credibility of the witnesses." Conley, 183 N.E.3d at 282.
[¶31] The judge who presided over Sheets' original trial also presided over the postconviction proceeding. Therefore, "the post-conviction court's findings and judgment are entitled to greater than usual deference." Reeves v. State, 174 N.E.3d 1134, 1140 (Ind.Ct.App. 2021), trans. denied. To be clear, "we defer substantially to findings of fact but not to conclusions of law." State v. McCraney, 719 N.E.2d 1187, 1190 (Ind. 1999).
[¶32] Sheets also appeals following the denial of his motion to correct error. "The denial of a motion to correct error based on newly discovered evidence will only be reversed for an abuse of discretion." Martinez v. State, 917 N.E.2d 1242, 1247 (Ind.Ct.App. 2009), trans. denied. An abuse of discretion occurs "if the judgment goes against the logic and effect of the facts or if the trial court has misinterpreted the law." Id.
I. Newly Discovered Evidence
[¶33] Sheets argues the post-conviction court should have granted him a new trial because R.S.'s post-conviction deposition and her testimony at the postconviction hearing amounted to "a full recant" of her prior statements describing Sheets' molestations of her. Appellant's Br. p. 12; Reply Br. p. 7.
[¶34] Indiana Post-Conviction Rule 1 provides a list of grounds for post-conviction relief. One of the grounds is "that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice[.]" Ind. Post-Conviction Rule 1(1)(a)(4). The Court has stated:
Newly-discovered evidence mandates a new trial only when the defendant demonstrates each of the following nine requirements: '(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.'Bunch v. State, 964 N.E.2d 274, 283 (Ind.Ct.App. 2012) (quoting Taylor v. State, 840 N.E.2d 324, 329-330 (Ind. 2006)), trans. denied. "We analyze 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.'" McVey v. State, 863 N.E.2d 434, 446 (Ind.Ct.App. 2007) (quoting Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000)), trans. denied. A witness's recantation or admission of perjury does not necessarily mandate the grant of a new trial. Martinez, 917 N.E.2d at 1247.
[¶35] After reviewing the evidence set forth above, we agree with the post-conviction court that R.S.'s post-conviction deposition and testimony were merely impeaching of her prior statements. That is, her more recent statements would cast doubt on her pre-trial statements but not eliminate them. For example, in her post-conviction deposition, R.S. unequivocally stated Sheets touched her "private part" and made her touch his penis, providing support for her prior statements. Post-Conviction Transcript Vol. III, p. 14. And during the postconviction hearing, R.S. did not deny that Sheets made her touch his penis, saying only that she could not remember whether he had committed that act.
[¶36] Sheets argues that R.S. recanted her testimony by: (1) saying that the abuse happened only one time rather than fifty times; and (2) denying in her postconviction deposition that he penetrated her vagina with his finger. Regarding the number of times the abuse happened, R.S. stated, and Sheets did not deny in his police interview, that she had lived with him for long periods of time and frequently spent the night at other times. R.S. also stated the molestations happened between ten and one hundred times and then settled on "a little over fifty," Trial Tr. Vol. II, p. 220, which was obviously an approximation. There is no evidence she kept a journal or record at the time. Considering her prior statements, it would be a false dichotomy to conclude there was either only one occurrence or fifty occurrences.
Sheets additionally argues that R.S. recanted by saying that Sheets was snoring when he touched her. But her statements in the post-conviction deposition and during the post-conviction hearing were nothing new, because she had said in her original deposition that Sheets had snored while touching her, and she could not tell if he was awake or asleep.
[¶37] As for the question of penetration, in her post-conviction deposition R.S. was asked only three questions. She was first asked whether Sheets had ever touched her "private parts with his fingers," which she did not answer but instead responded with a question, "What do you mean by that?" PostConviction Transcript Vol. III, pp. 18. Counsel then asked a compound question, "did he penetrate your vagina area?" and "[d]id he stick his fingers where they shouldn't be?" Id. at 18-19.
[¶38] The term "vagina area" is ambiguous and has no specific meaning. The crime in question is not for penetration of an "area" but for penetration of the sex organ. And the "'slightest penetration of the sex organ, including penetration of the external genitalia,'" is sufficient to demonstrate a person performed other sexual conduct with a child. Hale v. State, 128 N.E.3d 456, 461 (Ind.Ct.App. 2019) (quoting Boggs v. State, 104 N.E.3d 1287, 1289 (Ind. 2018)), trans. denied. Penetration of the vaginal canal is not required to prove Level 1 felony child molesting. Id. at 463. The crime includes penetration of the vulva, or external genitalia. See id.
[¶39] In her previous testimony, R.S. said that Sheets touched her with his finger "inside," a precise statement of fact. Trial Tr. Vol. IV, State's Ex. 7 at 17:27. But she did not use the word "inside" in her post-conviction deposition or hearing testimony. Instead, R.S. denied that Sheets stuck his fingers "where they shouldn't be." Post-Conviction Transcript Vol. III, p. 19. But R.S. had already testified that Sheets touched her "private part" with his hand and, in effect, she admitted that his fingers were where they shouldn't be. PostConviction Transcript Vol. III, p. 14. It is unclear from the few questions asked and answered whether R.S. believed that digital penetration of the vaginal canal was necessary for her to answer "yes" rather than "no" to counsel's compound question. R.S.'s testimony was short, not fully developed, and inadequate. The post-conviction court did not err when it noted that R.S.'s denial of penetration contradicts her prior, more detailed statements on the subject, and would merely call her credibility into question.
[¶40] The post-conviction court also determined R.S.'s testimony was not worthy of credit. "Whether a witness's testimony at a postconviction hearing is worthy of credit is a factual determination to be made by the trial judge who has the opportunity to see and hear the witness testify." McCraney, 719 N.E.2d at 1191. As the post-conviction court noted, R.S.'s prior statements accusing Sheets of molesting her were much closer in time to the events than R.S.'s postconviction deposition and post-conviction hearing testimony. During her postconviction deposition, R.S. conceded the events occurred "a long time ago." Post-Conviction Transcript Vol. III, p. 15. And her prior testimony was more detailed. Sheets argues the post-conviction court wrongly disregarded R.S.'s post-conviction statements, but the findings and conclusions demonstrate the court scrutinized her statements and explained why they were unconvincing. We will not second-guess the post-conviction court's credibility determination.
[¶41] The final relevant element of the test for newly discovered evidence is whether the new evidence would probably produce a different outcome at a new trial. "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 v. State, 568 N.E.2d 1006, 1008 (Ind. 1991).
[¶42] R.S.'s post-conviction deposition reaffirms the core points of her prior statements: Sheets touched her genitals and forced her to touch his. Her postconviction hearing testimony also reaffirmed that Sheets had touched her genitals, and she merely stated she did not remember whether he had made her touch his genitals. To be sure, R.S. rejected some elements of her prior statements, particularly as to the number of times Sheets had molested her, but her new statements raise only credibility issues. And even if Sheets were granted a new trial, all of R.S.'s past and more recent statements would be presented to the jury. In sum, Sheets has failed to demonstrate the postconviction court erred in concluding R.S.'s new statements would probably not produce a different result at trial. See Carter, 738 N.E.2d at 671-72 (no error in rejecting newly-discovered expert medical evidence; Carter failed to demonstrate evidence would probably show victim accidentally shot himself rather than being shot by Carter). We affirm the post-conviction court's rejection of Sheets' claim of newly discovered evidence.
II. Trial Counsel and R.S.'s Testimony
[¶43] Sheets argues that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel. He claims his trial counsel should have insisted that R.S. testify in person at trial. We review such claims under the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984). "The defendant must show that trial counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Reeves, 174 N.E.3d at 1140. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Nix v. State, 212 N.E.3d 194, 203 (Ind.Ct.App. 2023), trans. denied. Failure to prove either deficient performance or prejudice causes the defendant's claim to fail. Id.
[¶44] "There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018). Counsel is also afforded considerable discretion in choosing strategy and tactics, and those decisions are entitled to deferential review. Id. "A decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second guess." Smith v. State, 822 N.E.2d 193, 204 (Ind.Ct.App. 2005), trans. denied.
[¶45] Here, during a pretrial hearing, the trial court and the parties discussed whether R.S. would testify. The prosecutor told the court that Sheets needed to question R.S., and then the parties might need to ask the court to rule on "the reliability of [her] statement." Trial Tr. Vol. II, p. 34. But the prosecutor also said the parties were "discussing some other options as well that may be mutually beneficial to both parties and so if we can reach a different outcome we will let you know and file the appropriate stipulation[.]" Id. at 34-35. The court noted that having R.S. testify would be "the easiest way for the Court." Id. at 37. But the court also told Sheets that putting R.S. on the witness stand could be "a bad thing" because she could be so nervous that she would be unable to testify to the truth. Id. at 38. The court suggested to Sheets that "it might be better to play the video, from your perspective." Id. Sheets' counsel responded that he and Sheets had discussed that possibility.
The prosecutor told the trial court that a doctor had examined R.S. and had concluded she was capable of testifying.
[¶46] Sheets took R.S.'s deposition. At a subsequent pretrial hearing, Sheets' counsel told the trial court that Sheets was "willing to stipulate to the video tape and the deposition being put into evidence in lieu of live testimony [from R.S.]." Id. at 51. Sheets' counsel then asked Sheets on the record whether he agreed that, after discussing the issue, R.S.'s videotaped interview and her deposition should be given to the jury instead of live testimony. Sheets stated he was satisfied with that plan.
[¶47] Based on this evidence, Sheets' counsel's decision not to seek live testimony from R.S. was a strategic decision intended to benefit Sheets' defense. The trial court and the parties discussed the advantages and disadvantages of having R.S. testify. Sheets' counsel waited until after taking R.S.'s deposition to decide and conveyed he had discussed the issue with Sheets. During closing argument, Sheets' counsel pointed out discrepancies in R.S.'s various statements and encouraged the jury to weigh her credibility accordingly. That tactic reflects a strategy of keeping R.S. off the witness stand, to avoid the risk inherent in courtroom testimony.
[¶48] Sheets argues that if his counsel had questioned R.S. at trial, counsel might have discovered that R.S. had repudiated her prior accusations. Sheets points to a letter his stepdaughter submitted at sentencing, in which she said R.S. had revealed "the truth" after being removed from her parents' care. Direct Appeal Appellant's Appendix Vol. 2, p. 154. Sheets fails to clarify what "the truth" means. But even if that letter meant that R.S. had changed her testimony, the letter was presented after the trial. All of R.S.'s statements before counsel's decision to forgo her live testimony consistently stated Sheets had molested her. "Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight." Wine v. State, 147 N.E.3d 409, 417 (Ind.Ct.App. 2020), trans. denied.
[¶49] In summary, Sheets has failed to show the post-conviction court erred in concluding his trial counsel's performance did not fall below an objective standard of reasonableness. See Smith, 822 N.E.2d at 203-04 (post-conviction court did not err in rejecting ineffective assistance claim based on counsel's choice to not call witness; counsel determined, as a matter of strategy, that witness's testimony could have hurt Smith's case). We need not address the question of prejudice.
Conclusion
[¶50] For the reasons stated above, we affirm the judgment of the post-conviction court.
[¶51] Affirmed.
Mathias, J., and Felix, J., concur.