Opinion
23A-PC-2548
08-26-2024
Bernie Harmon, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
ATTORNEY FOR APPELLANT Daniel K. Whitehead Yorktown, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indian
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Crawford Circuit Court The Honorable John T. Evans, Special Judge Trial Court Cause No. 13C01-2101-PC-1
ATTORNEY FOR APPELLANT
Daniel K. Whitehead
Yorktown, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney General
Indianapolis, Indian
Riley and Felix Judges concur.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Bernie Harmon appeals the post-conviction court's denial of his petition for post-conviction relief. He presents a single issue for our review, namely, whether the post-conviction court erred when it found that he was not denied the effective assistance of trial counsel.
[¶2] We affirm.
Facts and Procedural History
[¶3] This Court set out the facts and procedural history of this matter on direct appeal as follows:
Harmon and his wife, Melissa Harmon ("Melissa") (collectively "the Harmons") lived in Crawford County, Indiana with their biological son, K.H., and biological daughter, W.H. The Harmons drove school buses and operated a car repair shop near their home. In 2005, the Harmons became foster parents to five children[] ("the Children"). C.H.[], S.H.[], and C.A.H.,[] who were biological siblings, and G.H.[] and M.H.,[] who were biological siblings. In April 2006, the Children were removed for a short period and returned to the Harmons in 2007, after they received more foster parent training. In March 2008, the Harmons adopted C.H., S.H., and C.A.H. Several months later in June, the Harmons adopted G.H. and M.H.
Shortly after adoption, the Children were treated significantly worse than when they were foster children. Harmon began physically and sexually abusing the Children and limiting the amount of food that they could eat. According to the Children, Harmon punished them by hitting their buttocks or backsides with a paddle, an extension cord, a switch,[] a bull whip or a
horsewhip. The Children were sometimes clothed when Harmon beat them, but other times they were not. S.H. indicated that Harmon beat her many times, and she also saw Harmon beat the other children. C.A.H. explained that Harmon sometimes whipped her a couple times a day, but not every day. Harmon told C.A.H. while she was still a foster child that she would be the first to be "whipped" after the Children were adopted. Tr. p. 322. Harmon also hit C.A.H. in the head with an ax handle, which caused bumps. M.H. and G.H. were whipped a couple of times per week.
Several of the children reported that Harmon sexually abused them after they were adopted.[] Harmon touched S.H.'s breasts on numerous occasions and sometimes masturbated while he touched her.[] Harmon also had sexual intercourse with S.H. and forced her to perform oral sex on him about four or five times. Harmon touched C.A.H.'s breasts and vagina as well. Harmon made C.A.H. perform oral sex on him and ejaculated in her mouth. He also placed hot dogs in C.A.H.'s vagina.
Further, Harmon instructed G.H. to perform and receive sexual acts on and from S.H. and C.A.H. Harmon made C.A.H. perform oral sex on G.H. and in return G.H. sucked on C.A.H.'s breasts. Harmon also told S.H. and G.H. to perform oral sex on one another. On another occasion when Harmon was driving home from his shop, he instructed G.H. to perform oral sex on S.H. as he drove. Harmon told the Children if they did not comply that he would beat them.
The Children reported being hungry as well. They were not allowed to access the refrigerator at home. During the 2009-2010 school year, G.H. and M.H. asked other children for food and rummaged through the trash looking for uneaten snacks. One of the girls also stole peanut butter from her classroom and kept it in her locker to eat.[] The Children were removed from public school after completing the 2009-2010 school year. Harmon stated that he was tired of receiving calls about the Children from
school officials and the DCS investigations. At the time, M.H. had just completed second grade, G.H. had completed third grade, C.A.H. had completed sixth grade, and S.H. had completed fifth grade.[] Several of the children stated that they completed homeschooling workbooks for about one year at the Harmon household but then the lessons stopped completely.
The Children also slept in the attic, which could be accessed with a step ladder.[] During the night, the Harmons locked the door to the attic and removed the step ladder so the Children could not access the downstairs bathroom. As a result, the Children urinated and defecated in the attic insulation and in plastic bottles and bags. The oldest child, C.H., stayed in the Harmon[s'] shed. The shed had electricity, a mini refrigerator, and a couch, but no bathroom. The Children were instructed to urinate and defecate in the woods in a bucket, but they were allowed to bathe in the house.
At one point after the Children were adopted, the Harmons went on vacation to Tennessee for about a week and left the Children at home with their older daughter, W.H. However, during this time, the Children were not allowed to go in the house, so they slept in the Harmon[s'] camper and urinated and defecated as needed in the woods.
Harmon and Melissa explained that the Children had a habit of digging through dumpsters and leaving trash in the woods. In March 2013, Harmon told the Children that they needed to clean up the trash in the woods.[] If they failed to comply, he told them that they would be beaten. On March 19, 2013, G.H. and M.H. ran away from home because they were tired of "getting whipped." Tr. p. 364. At this time, G.H. also told M.H. about his forced sexual interactions with S.H. and C.A.H. One of Harmon's neighbors found the boys walking on his property and transported them to the courthouse. G.H. told authorities about the physical and sexual abuse that he and the other children had
experienced from Harmon. G.H. also wrote a letter to the judge asking not to be sent back to the Harmon[s'] home.
The Harmons were notified that the boys were found and were asked to bring S.H. and C.A.H. to the courthouse as well. They complied, and the girls were questioned. At first, S.H. and C.A.H. denied the accusations and indicated that they wanted to return home with the Harmons. However, C.A.H. later explained that she denied the accusations because she was afraid, and S.H. stated that she thought she would be placed in a worse foster home. Detective Craig Starr ("Detective Starr") observed multiple red lateral marks on M.H.'s right and left buttocks along with several bruises on the back of his left thigh. Detective Starr also noticed that G.H. had a lateral mark on his right butt cheek and several lateral marks on his left buttocks and his lower hip area. The Children were then examined by a nurse at Memorial Hospital. The nurse documented that S.H. had scars and bruises on her hand, and C.A.H. had numerous marks, bruises, and scars.[] State's Ex. Vol., Ex. 12-13. She also noted that all of the Children except for G.H. were very emaciated. Tr. p. 421.
The Harmons gave up their parental rights to the Children on May 21, 2013. S.H. and C.A.H. were placed in a foster home, and G.H. and M.H. were placed in a different foster home. The Children were then placed back in public school after three years of being homeschooled. The record reflects that the Children actually completed lessons for one year at most but were unable to pass their grade-appropriate placement tests.
Harmon denied any allegations of sexual abuse but admitted to disciplining the Children with a paddle and a switch. He also denied ever using a whip of any kind as a means of discipline. Harmon explained that the Children would frequently misbehave and he thought that this type of discipline would be more effective than the time outs that he used when they were foster children.
On July 26, 2013, a grand jury indicted Harmon for multiple offenses, including child molesting, neglect of a dependent, battery, vicarious sexual gratification, and sexual misconduct with a minor. On April 20, 2015, the State filed an amended indictment which included: Count I, Class B felony sexual misconduct with a minor, Count II, Class C felony sexual misconduct with a minor, Count III, Class C felony child molesting, Count IV, Class B felony sexual misconduct with a minor, Count V, Class C felony sexual misconduct with a minor, Count VI, Class B felony vicarious sexual gratification, Count VII, Class C felony vicarious sexual gratification, Count VIII, Class B felony vicarious sexual gratification, Counts IX-XII, Class D felony neglect of a dependent, Count XIII, Class C felony battery, Counts XIV-XV, Class D felony battery, and Count XVI, Class A misdemeanor battery.
A jury trial was held on June 9-17, 2015. The jury returned a verdict of guilty on all counts. The trial court held a sentencing hearing on August 25, 2015, and ordered Harmon to serve twelve years with two years suspended on Count I; six years with one year suspended on Count II; six years with one year suspended on Count III; twelve years with two years suspended on Count IV; six years with one year suspended on Count V; twelve years with two years suspended on Count[] VI; six years with one year suspended on Count VII; twelve years with two years suspended on Count VIII; two years executed each on Counts IX-XII; five years with one year suspended on Count XIII; two years with six months suspended each on Counts XIV and XV; and one year executed on Count XVI. The court ordered Counts I-VIII to run consecutively and Counts IX-XII to run concurrently but consecutively to all other counts. Further, the court ordered Counts XIII through XV to run concurrently but consecutively to all other counts and Count XVI to run consecutively to all other counts, for an aggregate sentence of eighty years executed at the Department of Correction, thirteen of which were suspended to probation.Harmon v. State, No. 13A01-1509-CR-1513, 2016 WL 6139055, at * 1-3 (Ind.Ct.App. Oct. 20, 2016) ("Harmon I"), trans. denied.
[¶4] On direct appeal, Harmon argued that the trial court had abused its discretion when it excluded certain evidence from trial; that the State had presented insufficient evidence to support his convictions; that several of his convictions violated double jeopardy principles; that the trial court abused its discretion when it sentenced him; and that his sentence was inappropriate in light of the nature of the offenses and his character. We affirmed his convictions and sentence.
[¶5] In January 2021, Harmon filed a petition for post-conviction relief alleging that he was denied the effective assistance of trial counsel. Following a hearing, the trial court denied his petition. This appeal ensued.
Discussion and Decision
[¶6] Harmon appeals the post-conviction court's denial of his petition for postconviction relief. Our standard of review in such appeals is clear:
"The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence." Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. at 274. In order to prevail on an appeal from the denial of post-conviction relief, a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[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." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).
[¶7] Harmon contends that the post-conviction court erred when it found that he was not denied the effective assistance of trial counsel.
When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, "the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the 'counsel' guaranteed by the Sixth Amendment." McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, "the defendant must show prejudice: a reasonable probability (i.e.[,] a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different." Id. (citing Strickland, 466 U.S. at 694).Id. Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[¶8] "[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption." Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Counsel has wide latitude in selecting trial strategy and tactics, which we afford great deference. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). We "will not speculate as to what may have been counsel's most advantageous strategy, and isolated poor strategy, bad tactics, or inexperience does not necessarily amount to ineffective assistance." Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind.Ct.App. 1991) (citation omitted).
[¶9] Harmon argues that his trial counsel's performance was deficient in several ways, and we address each of his arguments in turn.
Amendment of Indictment
[¶10] Harmon first contends that his trial counsel's performance was deficient by not objecting to and moving to dismiss the amended indictment. Harmon states that
[t]he Amended Indictment sets forth sixteen (16) separate counts rather than the original grand jury indictment of thirty-three (33) separate counts. Therefore, the State of Indiana filed an Amended Indictment that virtually changed the grand jury finding and in addition, which changed the substance of the majority of counts.
Appellant's Br. at 11. In particular, Harmon argues that the addition of new date ranges for the alleged offenses constitutes a substantive change that prejudiced him. Harmon does not direct us to any other purported substantive changes.
[¶11] In essence, Harmon maintains that, because the amended indictment is substantively different from the original indictment considered by the grand jury, he was prejudiced by the amendments. But as the State points out, even had the trial court dismissed the amended indictment, the State could have simply refiled the charges under a new cause number and without first presenting them to a grand jury. See, e.g., Willoughby v. State, 660 N.E.2d 570, 578 (Ind. 1996) (holding no error where trial court allowed the State to refile charges that "expanded the time frame of the conspiracy beyond the duration set out in the original count"). Thus, Harmon has not shown that his trial counsel's decision to not object to the amendment given the State's clearly available work-around was deficient.
[¶12] Further, as the post-conviction court found, Harmon does not explain how the timing of the amendment, almost two months before trial, prejudiced him. He does not explain, for instance, how the different dates set out in some of the amended charges impacted the preparation of his defense. Merely calling the amendments prejudicial, without more, does not make them so. Harmon has not shown that he was prejudiced when his trial counsel did not object to the amendment or file a motion to dismiss.
To the extent Harmon contends that the amendment violated the Fifth and Fourteenth Amendments to the United States Constitution, he does not make cogent argument in support of that assertion, and it is waived.
Prosecutorial Misconduct
[¶13] Harmon next contends that the prosecutor committed misconduct during opening and closing arguments at trial. Specifically, Harmon maintains that
the State of Indiana committed prosecutorial misconduct . . . by virtually testifying throughout its opening, and never once paraphrasing its statements with any representation such as "the evidence will show" and "the witness will testify." Trial Counsel failed to object to the State of Indiana's opening statement as [(1)] misconduct in presenting testimony rather than a summary of what the evidence would show, and (2) in failing to object to statements made by the prosecutor that took the form of vouching for a witnesses credibility and testimony, and (3) in failing to request a mistrial based on the prosecutor[']s opening and closing statements.
Appellant's Br. at 16. Examples of the alleged misconduct include the prosecutor's remark that Harmon was "lying" when he testified in his defense; that witnesses were "telling the truth"; that witnesses were credible; and that the children were not lying. Appellant's Br. at 17-18 (citing the trial transcript).
[¶14] The post-conviction court found that, "[w]hile some of the prosecuting attorney's argument may have been inartful," defense counsel's failure to object to them was not deficient. Appellant's App. Vol. 2, p. 19. Indeed, as our Supreme Court has held,
a prosecutor does not necessarily engage in misconduct by characterizing a defendant as a liar.... [W]here evidence introduced at trial indicates that either the defendant was lying or that other witnesses were lying, comments by the prosecutor which merely "pointed out the incongruities in the testimony presented at trial, concluded that someone must not be testifying truthfully, and invited the jury to determine which witness was telling the truth" did not constitute misconduct. [Hobson v. State, 675 N.E.2d 1090,] 1096[ (Ind. 1996)]. Rather, "a prosecutor may comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence." Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988).Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Accordingly, Harmon has not shown that his trial counsel's performance was deficient when she did not object to the challenged remarks by the prosecutor.
[¶15] In any event, and again, Harmon has not shown that this alleged deficient performance prejudiced him. The State's evidence against Harmon was overwhelming, as we noted in Harmon I. Thus, "we are not persuaded that the post-conviction evidence leads unerringly to a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Spranger v. State, 650 N.E.2d 1117, 1124 (Ind. 1995) (quoting Strickland, 466 U.S. at 694).
Right to Present a Defense
[¶16] On direct appeal, Harmon argued that the trial court abused its discretion and violated his constitutional right to present a defense when it excluded testimony by Deborah Wills, who fostered the Children after they were removed from Harmon's home. In particular, Harmon argued in Harmon I that the trial court had erred in excluding Wills's testimony that C.H. had had sex with S.H. and that Wills had overheard S.H. tell C.A.H., "You know dad never touched you." 2016 WL 6139055, at *6. Harmon's trial counsel failed to preserve that issue for our review, so he argued that the error was fundamental.
[¶17] We rejected Harmon's argument that the exclusion of Wills's testimony violated his right to present a defense and constituted fundamental error. And, in the alternative, we stated that the trial court did not abuse its discretion and that any error was harmless. In particular, we stated:
Wills's first statement that Harmon sought to introduce did not implicate C.H. instead of Harmon in molesting S.H., but rather indicated that S.H. also had sex at some point with C.H. See Pribie, 46 N.E.3d at 1248 (concluding that the trial court did not violate defendant's right to present a defense when it excluded evidence that a victim engaged in prior sexual activity). Thus, it was irrelevant and had great potential to mislead the jury.
Further, Harmon had the opportunity to extensively crossexamine S.H., C.A.H., and C.H. Both S.H. and C.H. denied engaging in sexual relations with one another. C.H. also denied engaging in sexual relations with C.A.H., but C.A.H. was not asked whether she ever had a sexual relationship with C.H. Therefore, we conclude that the trial court's exclusion of Wills's
testimony did not violate Harmon's right to present a defense and accordingly did not constitute fundamental error.
Furthermore, even if the trial court had erred in excluding Wills's testimony, any error was harmless. Where wrongfully excluded evidence is merely cumulative of other evidence presented, its exclusion is harmless error. Pierce v. State, 29 N.E.3d 1258, 1268 (Ind. 2015). Wills's testimony would have been cumulative to other evidence presented because the jury also heard testimony that the girls originally denied that Harmon molested them. We also acknowledge Harmon's argument that the State opened the door to this evidence. However, the State called C.H. to testify only after Harmon claimed in his opening statement that it was C.H. who sexually abused S.H. and C.A.H. instead of Harmon. Regardless, there is an overwhelming amount of evidence of Harmon's guilt, and any such error was harmless. For all of these reasons, we conclude that the trial court did not abuse its discretion in excluding Wills's testimony.Id. at *8.
[¶18] In this appeal, Harmon acknowledges that we ruled in Harmon I "that the statements were either hearsay or in contravention of evidentiary rule[s] and that Trial Counsel failed to preserve that issue." Appellant's Br. at 21. But Harmon maintains that "[t]hat first analysis is incorrect and the second relates to trial [c]ounsel's continued ineffective assistance." Id. He contends that "[e]videntiary rules cannot prevent a defendant from presenting his defense." Id. at 22 (citing Chambers v. Mississippi, 410 U.S. 284 (1972)). But Harmon's reliance on Chambers is misplaced.
[¶19] In Chambers, the State had sought to exclude evidence under a "voucher rule" that "barred parties from impeaching their own witnesses." Holmes v. South Carolina, 547 U.S. 319, 325 (2006) (citing Chambers, 410 U.S. at 294). The Supreme Court later explained that, while "'arbitrary' rules[ like the voucher rule in Chambers], i.e., rules that excluded important defense evidence but that did not serve any legitimate interests" could not deprive a defendant of his right to present a defense, "well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes, 547 U.S. at 326.
[¶20] And, as our Supreme Court has stated,
[a]lthough a defendant's right to present a defense "is of the utmost importance, it is not absolute." Parker v. State, 965 N.E.2d 50, 53 (Ind.Ct.App. 2012), trans. denied. "The accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id. (citation omitted).Jacobs v. State, 22 N.E.3d 1286, 1288 (Ind. 2015).
[¶21] On appeal, Harmon makes no contention that the trial court acted arbitrarily in excluding Wills's proffered testimony at his trial. Thus, he has not sustained his burden on appeal to show that his trial counsel's performance was deficient or that the result of his trial would have been different had his trial counsel asserted his right to present a defense with respect to Wills's proffered testimony.
Conclusion
[¶22] In sum, Harmon has not shown that his trial counsel's performance was deficient, let alone that he was prejudiced by any such deficiency. For all these reasons, we affirm the post-conviction court's denial of Harmon's petition for post-conviction relief.
[¶23] Affirmed.
Riley, J., and Felix, J., concur.