Donald G. Karr, Jr. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 31 2018, 9:51 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane H. Ruemmele Curtis T. Hill, Jr.
Hayes Ruemmele, LLC Attorney General of Indiana
Indianapolis, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald G. Karr, Jr., January 31, 2018
Appellant-Defendant/Petitioner, Court of Appeals Case No.
29A02-1707-CR-1502
v. Appeal from the
Hamilton Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff/Respondent. William J. Hughes, Judge
The Honorable
Wayne A. Sturtevant, Judge
Trial Court Cause Nos.
29D03-1505-F6-4047
29D05-1703-PC-1576
Kirsch, Judge.
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[1] Following a jury trial, Donald G. Karr, Jr. (“Karr”) was convicted of Level 6
felony domestic battery committed in the presence of a child less than sixteen
years of age1 and two counts of Level 3 felony rape.2 The trial court sentenced
Karr to two and one-half years for the battery conviction. For the two rape
convictions, the trial court imposed concurrent fifteen-year sentences, with five
years suspended on each, and ordered the rape sentences to be served
consecutive to the battery sentence, for an aggregate executed sentence of
twelve and one-half years. Karr filed a motion for a new trial, alleging
ineffective assistance of trial counsel, and the trial court denied his motion.
Karr appealed, but then sought a remand to the trial court in order to pursue
post-conviction relief. We granted his request and dismissed his appeal without
prejudice pursuant to Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977) and
Hatton v. State, 626 N.E.2d 442 (Ind. 1993), allowing Karr to later file a new
notice of appeal and raise both the issues that he would have raised in the
original appeal along with new issues created by the post-conviction court’s
ruling on the petition for post-conviction relief.3 Appellant’s App. Vol. II at 33.
1
See Ind. Code § 35-42-2-1.3.
2
See Ind. Code § 35-42-4-1(a)(1).
3
This procedure is referred to by Indiana courts as a Davis/Hatton procedure and involves a termination or
suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a
post-conviction relief petition to be pursued in the trial court. Talley v. State, 51 N.E.3d 300, 302 (Ind. Ct.
App. 2016), trans. denied; see also Ind. Appellate Rule 37(A) (“At any time after the Court on Appeal obtains
jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or
temporarily stayed and the case remanded to the trial court . . . for further proceedings. The motion must be
verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the
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[2] Karr filed a petition for post-conviction relief, alleging claims of ineffective
assistance of trial counsel, and the trial court denied Karr’s petition, finding that
it was barred by res judicata. Karr initiated this consolidated appeal and presents
the following reordered and restated issues:
I. Whether sufficient evidence supports Karr’s domestic battery
conviction and two rape convictions;
II. Whether the trial court abused its discretion in sentencing
Karr;
III. Whether the trial court erred when it found that Karr
received effective assistance from trial counsel and, therefore,
denied Karr’s request for a new trial; and
IV. Whether the post-conviction court erred when, by summary
denial, it denied Karr’s petition for post-conviction relief on the
basis that his claims of ineffective assistance of counsel were
barred by res judicata.
[3] We affirm.
Facts and Procedural History
[4] In May 2015, Karr and his then-girlfriend, A.P., along with her three children
(“Children”), ages six, five, and three years old, were living in a residence that
administration of justice.”). The procedure is useful where a defendant needs to develop an evidentiary
record to support a claim of ineffective assistance of trial counsel. Talley, 51 N.E.3d at 303.
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Karr and A.P. leased. Karr and A.P. shared a bedroom that was located off the
same hallway as a bedroom that the three Children shared. On the evening of
May 5, 2015, A.P. was home with the Children, and she put them to bed
around 8:00 p.m. As A.P. left the Children’s room and closed the door behind
her, Karr came home from work. He was “agitated” and asked her what she
was doing. Tr. Vol. II at 35. He walked from the front door to the back door
and looked outside, and he accused her of having someone in the house before
he got home. She told him that was not the case, and he became angry and
took her phone from her as she sat on the living room couch, which according
to A.P. was positioned right next to the opening to the hallway, leading to the
Children’s bedroom. Karr believed that A.P. was lying, and his voice got
louder as he accused her. He asked her “to deny it again[,]” and when she did,
he hit her across the cheek with an open hand. Id. at 38. He pulled her off the
couch by her hair, and she fell to the floor. Karr then told A.P. to get up,
saying that she was going to “suck his dick” every day and every night. Id. at
39.
[5] At some point, A.P.’s oldest child (“Child”) came out of her bedroom, and as
she opened the door, Karr went into the hallway and confronted her. Child
said she needed to go to the bathroom, and Karr told her “no” and to go back
to bed. A.P. heard Child begin to cry as she went back into the bedroom, and
Karr closed the door. He returned to A.P., who had gotten herself up from the
floor and was on the couch. He unbuckled his pants, and A.P. put her feet up
“and tried to kick him away” from her. Id. at 40. At that point, A.P. began to
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have abdominal pains from a preexisting ovarian cyst condition, so A.P. told
Karr that she needed to call her doctor.
[6] He initially refused, but he eventually agreed to let her call her doctor or go to
the emergency room. After A.P. vomited in the bathroom, Karr woke the
Children and told them they were all leaving and taking A.P. to the hospital.
At A.P.’s request, they dropped the Children off at A.P.’s parents’ home on the
way. When A.P. was asked at trial if, when they dropped off the Children at
her parents’ house, she had told her parents that Karr had beaten her and pulled
her hair, A.P. explained that she did not, because at that time her “main focus
was getting the kids away from [Karr] and . . . getting them someplace safe.”
Id. at 42. She feared that saying anything would put herself and the Children in
“more danger.” Id. Once at the hospital, she and Karr walked to the
registration area, and A.P. suggested to him that he go and park the car, and
when she “felt he was out of earshot,” she told the nurse, “I need you to get a
police officer because he’s hitting me.” Id. at 43-44. Karr returned, and they sat
together in an examination room, but then the nurse told Karr that A.P. needed
an ultrasound and he could not go, so she left and went to an ultrasound room,
where Officer Craig Denison (“Officer Denison”) of the Noblesville Police
Department (“NPD”) was waiting for her.
[7] A.P. told Officer Denison what had happened, and he took some pictures. She
also removed from her pocket and showed Officer Denison hairs that had come
loose and fallen out of her head when she was on the couch and Karr was
telling the Child to go back to bed. Officer Denison advised A.P. that he did
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not believe he could make an arrest of Karr at that time because there was no
immediate bleeding or bruising, but he offered to speak to Karr and to drive
A.P. home or wherever she needed to go. Believing that Karr had calmed, and
deciding “it would be better to just go home and . . . deal with everything the
next morning[,]” A.P. went back home with Karr. Id. at 48-49. A.P. called her
parents to let them know “what was going on” with her trip to the emergency
room,4 and because it was so late, after midnight, the Children stayed with
A.P.’s parents. Id. at 49.
[8] When A.P. and Karr arrived home, she went into the bathroom to get ready for
bed and put on pajamas, and he went to the kitchen. He became angry that she
had purchased “the wrong orange juice” and told her that she “needed to be
doing what he told [her] to do.” Id. at 51. He hit her across her face, and she
fell on the hallway floor. Karr took off his pants and underwear and told her
she was going to “suck his dick.” Id. at 52. He forced himself into her mouth,
but at some point stopped and “lectured” her about the rules he was setting for
her. Id. at 53. Eventually, Karr said he wanted to go to bed, so A.P. got into
bed. When he came into bed, he said he needed to masturbate. According to
A.P., he searched his phone for a pornographic video and told her to put her
hand on his penis. She complied because “every time I told him no[,] I was
either hit or forced to do something anyway[.]” Id. at 54. He later asked her to
4
We note that, after talking to Officer Denison, but before leaving the hospital, A.P. received an ultrasound
associated with the cysts.
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perform oral sex, which she did “[o]ut of fear of what would happen if I said
no.” Id. During this time, she saw a light behind her; she turned her head and
saw it was his cell phone “so I assumed he was taking a video.” Id. at 55. Karr
ejaculated on A.P., and both of them fell asleep.
[9] Karr went to work the next day, and, after she showered, A.P. went to a
doctor’s appointment. At her appointment, the doctor had already received
record of A.P.’s emergency room visit. The doctor asked A.P. to tell her “what
had happened,” referring to the situation with Karr. Officer Michael Boudreau
(“Officer Boudreau”) of NPD came and met A.P. at the doctor’s office, and at
A.P.’s request, an advocate from Prevail, a victim’s assistance agency, also met
with A.P. to help her prepare a request for a protective order. A.P did not go
home after the appointment because she was admitted to the hospital for pain
associated with the ovarian cysts. A.P. called her parents and asked her mother
to take the Children “someplace away from the house” and asked her father to
pick up her car from the hospital. Id. at 58. Meanwhile, Karr and A.P.
exchanged some casual text messages throughout the day. However, Karr
became angry when A.P. stopped responding to him. Officer Boudreau
prepared a probable cause affidavit, and Karr was arrested during a traffic stop.
[10] Before being released from the hospital, A.P. met with a forensic nurse, who
examined her, and took pictures of areas where Karr had hit A.P. and pulled
her hair. After being discharged, A.P. met with Detective Michael Haskett
(“Detective Haskett”) of NPD. Within the next week or two, A.P. and her
Children were interviewed by Indiana Department of Child Services (“DCS”).
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[11] On May 28, 2015, the State filed an amended information charging Karr with
Counts 1 through 5, as follows: Count 1, Level 6 felony domestic battery;
Count 2, Level 3 felony rape; Count 3, Level 3 felony rape; Count 4, Level 6
felony strangulation; and Count 5, Level 6 felony intimidation. A jury trial was
conducted on the charges in August 2016.
[12] A.P. was the first witness. She described the layout of the home where she,
Karr, and the Children resided. She said that the bedroom she shared with
Karr and the Children’s bedroom were both located off “a very small hallway,”
were “maybe six feet apart” in the hall, and, generally, she would be able to
hear the Children talking in their room after she put them to bed in the
evenings. Tr. Vol. II at 34. As to the night in question, she described that Karr
believed she had secretly had someone else in the house right before he got
home and sent the person out the front door as he came in the back. He
became very angry at her, and, after he first hit her, he “continued to hit [her]
several times again, both with an open hand and with a closed fist” on both
sides of her face and on her head. Id. at 39. She said that when he pulled her
off the couch by her hair, “It hurt a lot. I could feel and hear hair ripping out of
my head.” Id. A.P. said that she was on the floor, kneeling in front of the
couch, when her oldest Child came out of her room, and Karr went and told
Child to go back to bed. A.P. described that Child’s voice sounded “timid and
a little scared.” Id. at 40. A.P. explained that she went home from the hospital
later that night with Karr because “I was looking for some kind of protection
and if he wasn’t going to be arrested at that point then I felt that my only other
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course of action would be to file for a protective order and I wasn’t going to be
able to do that until the next morning[.]” Id. at 49.
[13] A.P. stated that the trip home from the hospital was uneventful, but that, when
they got home, Karr became angry that she got the wrong juice and demanded
that she perform oral sex on him. When she tried to avoid it, he threatened to
carve “C-U-N-T” into her forehead. Id. at 52. She described that she was
crying and choking and gagging when he forced his penis in her mouth. Id.
[14] On cross examination, defense counsel asked A.P. why she went home with
Karr that night from the hospital after he had beaten her and why she did not
leave once he fell asleep. She explained that she went home with him so that he
would not know she had told her story at the hospital or to a police officer and
that she planned to seek a protective order the next day. She said she did not
leave after he fell asleep because she was afraid of waking him or of him
following her. She did not go to a neighbor’s house because she did not know
her neighbors. She was asked, and denied, that at any time she removed her
hair from either the shower drain or her hair brush.
[15] Among other witnesses, Officers Denison and Boudreau also testified for the
State. Officer Denison testified to meeting with A.P. at the hospital when she
was in the E.R. He did not observe any injuries to her at that time, but noted
that “sometimes bruises, scratches, abrasions, swelling doesn’t show up until a
later date.” Id. at 154. Officer Denison characterized her demeanor as serious,
but she was “not frantic or crying.” Id. at 147. According to Officer Denison,
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A.P. did not want him to speak with Karr or her Children, telling him that she
“didn’t believe that her kids had witnessed any of the actual assault that
occurred,” and “it was just the verbal part that they had witnessed or heard.”
Id. at 150. He stated that A.P. seemed fearful or had concerns about possessing
the Prevail documents that he had given her, which he found was not unusual
in cases of domestic abuse. A.P. told Officer Denison she planned to obtain a
protective order the next day.
[16] Officer Boudreau testified that he was dispatched to the hospital on May 6,
2015, to take a report of a sexual assault. A Prevail representative was also
present during his interview with A.P. He did not observe any injuries to A.P.
and did not collect evidence from her. He was aware of a sexual assault
examination being conducted later in the day, and the following day, Officer
Boudreau wrote a probable cause affidavit for Karr’s arrest.
[17] Forensic nurse examiner Nakia Bowens (“Bowens”) testified that she examined
A.P. on May 7, 2015. She described A.P. as calm at times, but “tearful” at
other times. Id. at 182. She observed “redness and tenderness” in A.P.’s scalp
area and tenderness on her jawbone and redness to her chin, and an injury to
the inside of her lip. Id. at 185-86, 190-91, 203. She also had petechiae, or
“small red dots that indicate blood has burst,” on the roof of her mouth. Id. at
191. One of the causes of petechiae is blunt force trauma. Id. at 191-92.
Bowens testified that a penis striking the roof of the mouth could cause
petechiae. Pictures taken of A.P. by Bowens were admitted into evidence.
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[18] Detective Haskett met with A.P. on May 8 at the police station to get a formal
statement from her. He described her demeanor as “collected and matter-of-
fact,” but tearful at times. Id. at 215. He did not observe any injuries to her at
that time. Id. at 221. Sergeant Matt McGovern (“Officer McGovern”) of NPD
testified that, pursuant to a search warrant, he conducted a forensic analysis of
Karr’s cell phone. Officer McGovern testified that “sometimes” law
enforcement is able to retrieve deleted content, but it depends on the make and
model of the cell phone. Id. at 226.
[19] At the conclusion of the presentation of the State’s evidence, Karr moved for
and was granted a directed verdict on Count 5, Level 6 felony intimidation. Id.
at 242. Thereafter, the defense presented the testimony of DCS employee
Marshall Despain (“Despain”). In May 2015, Despain was an assessment
worker, who was assigned to investigate allegations of domestic violence
between A.P. and Karr and determine “how it affected the [C]hildren.” Tr. Vol.
III at 3. Despain testified to interviewing A.P. in May 2015, then consulting
with law enforcement, reviewing reports, and interviewing the Children. He
also tried to contact Karr for an interview. DCS ultimately determined that the
report “was unsubstantiated against both [A.P.] and [] Karr[,]]” meaning that
there was no evidence that the Children were affected or had “any knowledge
of anything every happening between them[.]” Id. at 2-3. He explained that his
purpose was not to determine if something happened between the parents; he
was to assess if the Children were affected and to make sure they were safe.
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[20] At the conclusion of the trial, the jury returned verdicts of guilty on Count 1,
Level 6 felony domestic battery, Count 2, Level 3 felony rape, and Count 3,
Level 3 felony rape; it returned a verdict of not guilty on Count 4, strangulation.
[21] The parties appeared on September 2, 2016, for a sentencing hearing, but by
that point, Karr’s trial counsel, Joshua Taylor (“Taylor”), had filed a motion to
withdraw. Karr appeared in person at the September 2 hearing, along with
Taylor and replacement defense attorney Jane Ruemmele (“Ruemmele”), who
sought leave to file an appearance for Karr and a continuance of the sentencing
hearing. Id. at 78. The trial court granted both Taylor’s request to withdraw
and Karr’s request to continue the sentencing hearing.
[22] The day before the scheduled September 2 sentencing hearing, Karr also had
filed a motion for a new trial based upon ineffective assistance of trial counsel.
Ruemmele noted to the court at the September 2 hearing that Karr’s ineffective
assistance claims were still preliminary and would later be supplemented
because Karr did not yet have a copy of the trial transcript or A.P.’s medical
records, including any medications A.P. was taking or had received at the E.R.,
which information Ruemmele argued would have been relevant to A.P.’s
memory of the alleged incidents, and thus, the ineffective assistance claims
would be supplemented upon review of those materials. On September 2, Karr
proceeded to present Taylor’s testimony relative to Karr’s ineffective assistance
of counsel claims as alleged in his motion for a new trial. Among other things,
Taylor testified as to what medical records he requested or did not request,
what witnesses he called or did not call, and why he did not explore alleged
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drug use by A.P., explaining that his actions were based upon strategic
decisions and assessments. He also discussed having made a motion in limine,
making certain objections, and his decision not to request a mistrial at one point
because he believed “things were going about as well as they could have at that
point,” and Taylor believed “there was a decent chance the jury would find Mr.
Karr not guilty[.]” Id. at 97. Taylor testified that, both before and during trial,
Karr and Taylor had discussed whether to have Karr testify and the risks
associated with him doing so, noting his concern that having Karr testify would
provide a chance for “fairly harmful” evidence to come into evidence. Id. at 99.
In closing the hearing, the trial court directed that a trial transcript be prepared
for Karr’s use and review in preparing for the hearing on a motion for a new
trial, and took the motion for a new trial under advisement.
[23] On September 19, 2016, the trial court conducted an additional evidentiary
hearing on Karr’s ineffective assistance of trial counsel claims, as alleged in his
motion for a new trial, presenting testimony of: A.P.; a male neighbor; Officer
McGovern; and Taylor. A.P. was questioned about what prescriptions she had
filled on or before May 5, the night in question, and if she received intravenous
medications while at the E.R. During her testimony, A.P. stated that she was
not impaired before or during the incident and any medications taken did not
affect her ability to recall the events. Id. at 135. When on cross-examination
Karr’s counsel asked A.P. why she showered before being examined by the
forensic nurse, A.P. explained, “I was trying to carry on with the day as if it
was normal. Also had no expectation of being examined by anyone for
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anything. At that time my understanding was that nothing was going to be
done and my only plan for the day was to file for a protective order.” Id. at
132. Officer McGovern, who had conducted a forensic analysis of Karr’s cell
phone and recovered videos, searches, texts and other information from it,
testified that he did not find any evidence of searches or viewing of
pornographic videos, as A.P. had testified to at trial, and he found no videos of
A.P. performing sex acts, contrary to A.P.’s testimony that she thought Karr
was videotaping her when she saw his cell phone light behind her. Upon cross-
examination by the State, Officer McGovern testified that he is not always able
to recover deleted content from a phone. Id. at 141.
[24] At the conclusion of the hearing, the trial court denied Karr’s motion for a new
trial, and it also issued a written order, stating, “The Court being duly advised
finds that the Defendant, has failed to establish that trial counsel Joshua Taylor
was ineffective at trial by either error or omission or commission and has
further failed to establish that any conduct by Mr. Taylor prejudiced the case of
the Defendant.” Appellant’s App. Vol. III at 7.
[25] In November 2016, the trial court held a sentencing hearing, sentenced Karr to
two and one-half years on the battery conviction and to fifteen years with five
years suspended for each rape conviction, and ordered the sentences for the
rape convictions to run concurrent with one another and consecutive to the
term imposed on the battery conviction. Karr timely filed a notice of appeal.
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[26] On January 6, 2017, Karr filed a Davis/Hatton petition with this court, seeking
to suspend his initial appeal and pursue post-conviction remedies. We granted
his request, and, on March 3, 2017, Karr filed a petition for post-conviction
relief, alleging that Taylor, his trial counsel, was ineffective by: (1) failing to use
phone records that showed that Karr’s phone did not contain photos or videos
of A.P. performing oral sex, although A.P. testified that Karr may have been
photographing or videotaping her; (2) failing to use phone records that showed
that Karr’s phone did not contain evidence that he accessed pornographic sites,
although A.P. had testified that he searched for pornography when she told him
she did not want to engage in oral sex; (3) failing to obtain medical records of
A.P. to discover whether she had been administered anesthesia at the E.R. in
the hours prior to the alleged acts that formed the basis of the rape charges; (4)
failing to obtain A.P.’s prescription records to determine if she had filled a
prescription for narcotics the same day as the alleged battery; (5) failing to offer
during trial text messages showing conversations between Karr and A.P. that
indicated A.P had filled a prescription for Narco on May 5, 2015; (6) failing to
offer at trial a text message sent by A.P. to someone, in which she stated that
she had received an IV and felt better, which Karr asserted “establish[es] that
she was under the influence of narcotics.” Appellant’s App. Vol. IV at 3-4.
[27] After filing his motion for post-conviction relief, Karr filed a motion for change
of judge, which was granted on March 20, 2017. In May 2017, the State filed a
Motion for Summary Denial of Karr’s petition for post-conviction relief,
asserting that the claims raised in Karr’s petition had already been litigated and
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adjudicated by the trial court pursuant to Karr’s motion for new trial. Id. at 18-
22. Following briefing, the post-conviction court granted the State’s request
and issued an order on June 13, 2017. The order stated that evidence was heard
during two hearings on Karr’s motion for a new trial that alleged ineffective
assistance of counsel, and the post-conviction court’s order further stated, in
part:
13. Although the Petitioner has abandoned two grounds of
alleged ineffectiveness of counsel originally raised in the trial
court, the allegations now raised in the Petitioner’s Petition for
Post-Conviction Relief are otherwise the same. All of the
grounds alleged in the pending Petition were directly argued,
were available to be argued from the evidence and/or were
available to be raised at the time of the hearing on Petitioner’s
Motion for a New Trial.
14. In his Motion for a New Trial, the Petitioner sought to have
his convictions for Domestic Battery and Rape vacated based
upon the alleged ineffective assistance of counsel. This is the
exact same relief requested in the Petitioner’s Petition for Post-
Conviction Relief, and that relief is sought based upon the exact
same grounds that were raised or could have been raised and
determined under Petitioner’s Motion for a New Trial.
15. Finally, and most obviously, the parties to the controversy in
the current matter are the same as those who were the parties to
the original criminal case.
16. A court may grant a motion by either party for summary
disposition of a petition for post-conviction relief when it appears
that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.
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17. In this case, there is no genuine issue of material fact because
the evidentiary issues now raised by the Petitioner have already
been heard and decided against Petitioner in the original trial
court.
Id. at 129-132. Karr filed a motion to reconsider, which the post-conviction
court denied. Karr now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[28] Karr contends that the State presented insufficient evidence for the jury to
conclude that he was guilty of domestic battery and two counts of rape.5 Our
standard of review is deferential to the factfinder, and we consider only the
evidence and reasonable inferences most favorable to the convictions, neither
reweighing evidence nor reassessing witness credibility. Taylor v. State, 86
N.E.3d 157, 163 (Ind. 2017). We will reverse only if no reasonable factfinder
could find the defendant guilty. Id. at 164. The evidence is not required to
overcome every reasonable hypothesis of innocence and is sufficient if an
inference may reasonably be drawn from it to support the verdict. Drane v.
State, 867 N.E.2d 144, 147 (Ind. 2007).
5
We note that in both his issue statement and his argument section, Karr claims that his “conviction”
(singular) is not supported by sufficient evidence, which suggests to us that he is appealing only one
conviction. Appellant’s Br. at 2, 41. However, Karr later urges in his brief that, for the reasons argued, we
vacate his “convictions” (plural). Id. at 44. We thus infer that he is challenging the sufficiency of the
evidence as to all three of his convictions.
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[29] To prove Karr committed Level 3 felony rape, the State was required to present
sufficient evidence that he caused A.P. to “perform or submit to other sexual
conduct” when she was “compelled by force or imminent threat of force[.]”
Ind. Code § 35-42-4-1(a)(1). Indiana Code section 35-31.5-2-221.5 defines
“other sexual conduct” as “an act involving ... a sex organ of one person and
the mouth or anus of another person.” Karr argues, “There was no forensic
evidence establishing that a sex act occurred[,]” noting that officers did not
observe physical injuries, Officer McGovern did not find pornographic videos
on Karr’s phone, nor any videos or pictures of A.P. performing oral sex.
Appellant’s Br. at 20.
[30] We reject Karr’s argument. First, it ignores that nurse Bowens found evidence
of physical injuries to A.P., including an injury to the inside of her lip and
petechiae on the roof of A.P.’s mouth, and Bowens testified that a penis striking
the roof of the mouth could cause petechiae. Second, there does not need to be
“forensic evidence establishing that a sex act occurred” to support the
convictions. “A rape conviction may rest solely on the uncorroborated
testimony of the victim.” Carter v. State, 44 N.E.3d 47, 54 (Ind. Ct. App. 2015)
(citing Potter v. State, 684 N.E.2d 1127, 1136 (Ind. 1997)).
[31] Karr also contends that, as to the Level 6 felony domestic battery conviction,
there was no evidence that any battery occurred within the presence of a child.6
6
Pursuant to the version of Indiana Code section 35-42-2-1.3, under which Karr was charged and convicted,
the offense of domestic battery is a Class A misdemeanor, but becomes a Level 6 felony, “if the person who
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Indiana courts have recognized, “[T]he critical question in determining whether
a child is ‘present’ for purposes of the statute is whether a reasonable person
would conclude that the child might see or hear the offense; not whether the
child is in the same room as where the offense is taking place.” Manuel v. State,
971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012); see also True v. State, 954 N.E.2d
1105, 1111 (Ind. Ct. App. 2011) (“presence” for purposes of Indiana Code
section 35-42-2-1.3(b)(2) is “defined as knowingly being within either the
possible sight or hearing of a child”).
[32] In support of his position, Karr points to the fact that A.P. had already put the
Children to bed in their own bedroom by the time he came home on the night
in question. Karr also notes that A.P. told Officer Denison that she did not
think that the Children had witnessed the battery. Tr. Vol. II at 150. However,
the inquiry is not whether any of the Children witnessed the battery; it is whether
it was committed in their presence, including within their possible hearing.
Here, Officer Denison’s testimony was that A.P. told him that she “didn’t
believe that her kids had witnessed any of the actual assault that occurred,” and
“it was just the verbal part that they had witnessed or heard.” Id. Further, the
State presented evidence that (1) the couch was positioned next to the “very
small hallway” off of which the Children’s bedroom was located, and (2) A.P.
generally could hear the Children talking after she put them to bed in the
committed the offense . . . committed [it] in the physical presence of a child less than sixteen years of age,
knowing that the child was present and might be able to see or hear the offense.”
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evenings, allowing the inference that they, too, could hear what was happening
outside of their room. Id. at 34. Evidence was also presented that, during the
time that Karr was yelling at A.P. and telling her to “suck his dick,” the oldest
Child opened her bedroom door. Karr confronted Child at her door and told
her to go back to bed, at which point A.P. heard Child begin to cry and go back
into her own bedroom. Id. at 39. Based on the record before us, we find that
the State presented sufficient evidence from which the jury could reasonably
infer that the battery was committed within the presence of a child.
[33] Karr also argues that A.P.’s testimony as to the battery and the rape allegations
is not to be believed because she was questioned about, but could not recall,
certain details before, during, and after, the incidents, including whether she
was taking pain medication(s), if she had filled a certain prescription, or for
what period of time the incidents lasted. Appellant’s Br. at 41-42. Karr asserts,
“Her lack of memory could have been that she consumed drugs that day, was
administered drugs that day, or both, or was simply fabricating the events.” Id.
at 43. He argues that her testimony showed that “she had significant
deficiencies in her ability to recall the details of her allegations,” and her
testimony was incredibly dubious and should not be believed. Id.
[34] The incredible dubiosity rule allows an appellate court to impinge upon the fact-
finder’s assessment of witness credibility when the testimony at trial was so
“unbelievable, incredible, or improbable that no reasonable person could ever
reach a guilty verdict based upon that evidence alone.” Moore v. State, 27
N.E.3d 749, 751 (Ind. 2015). Incredible dubiosity is a difficult standard to
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meet, requiring ambiguous, inconsistent testimony that “runs counter to human
experience.” Carter, 44 N.E.3d at 52. Our Supreme Court has reiterated the
limited scope of the rule and set out three requirements for its application: (1) a
sole testifying witness; (2) testimony that is inherently contradictory, equivocal,
or the result of coercion; and (3) a complete absence of circumstantial evidence.
Moore, 27 N.E.3d at 756.
[35] Here, A.P. related her version of events to at least the following: Officer
Denison at the E.R., her doctor the next day, Officer Boudreau, a victim’s
advocate from Prevail, Detective Haskett, and nurse Bowens. Her testimony
was not inherently contradictory or equivocal, and there is no evidence or
assertion that it was the result of coercion. Thus, the incredible dubiosity rule is
inapplicable. Further, the rule requires a complete absence of circumstantial
evidence. In this case, Bowens testified to the injuries that she observed to
A.P.’s scalp, lip, and mouth, which were consistent with A.P.’s description of
what happened with Karr. Karr’s claim that A.P.’s testimony was not credible
is a request for us to reweigh the evidence, which we cannot do on appeal.
Carter, 44 N.E.3d at 54. The State presented sufficient evidence to sustain
Karr’s three convictions.
II. Sentencing
[36] Karr challenges his sentence of an executed twelve and one-half years, claiming
it is excessive, and he asks us to remand for a new sentencing hearing or,
alternatively, reduce it. Initially, we note that Karr makes the assertion that his
sentence “is inappropriate in light of the nature of the offense and [his]
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character[,]” Appellant’s Br. at 46, but he does not specifically make any
argument or analysis as to either the nature of the offense or the character of the
offender. Thus, he has waived any inappropriateness argument under Indiana
Appellate Rule 7(B). Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010)
(failure to make cogent argument regarding the nature of defendant’s offense
and defendant’s character results in waiver of appropriateness claim).
[37] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Kubina v. State, 997 N.E.2d
1134, 1137 (Ind. Ct. App. 2013). A trial court abuses its discretion if its
decision is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom. Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). A trial court may be found to have abused its discretion by
failing to enter a sentencing statement at all; entering a sentencing statement
that explains its reasons for imposing a sentence where such reasons are not
supported by the record or are improper as a matter of law; or entering a
sentencing statement that omits reasons which are clearly supported by the
record and advanced for consideration. Id. at 490-91. “[R]egardless of the
presence or absence of aggravating or mitigating circumstances, a trial court
may impose any sentence authorized by statute and permissible under the
Indiana Constitution.” Kubina, 997 N.E.2d at 1137 (citing Indiana Code
section 35-38-1-7.1, providing non-exhaustive list of aggravating and mitigating
circumstances court may consider).
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[38] The range of penalties for a Level 6 felony is a fixed term of between six months
and two and one-half years, with the advisory sentence being one year. Ind.
Code § 35-50-2-7. The range of penalties for a Level 3 felony is a fixed term of
between three and sixteen years, with the advisory sentence being nine years.
Ind. Code § 35-50-2-5. Here, Karr received two and one-half years on the
domestic battery conviction and fifteen years, with five years suspended, on
each of the rape convictions. In sentencing Karr, the trial court found as
aggravating factors that Karr had a history of criminal behavior and that his
record reflected that he engaged in what the trial court termed a “pattern” of
similar behavior, committing a battery after a breakup or as a relationship was
ending. Tr. Vol. III at 232-33. The trial court recognized as mitigating that his
incarceration would result in unusual circumstances and hardship for his
parents, who relied on him for financial support.
[39] On appeal, Karr argues that the trial court should also have recognized as a
mitigating circumstance that he suffered multiple concussions in his life. The
record reflects that, at the sentencing hearing, Karr’s parents testified that Karr
suffered a concussion on four occasions, and they described that he had
resulting dizziness, memory issues, and increased agitation or frustration. No
medical evidence was presented, nor any suggested connection as to how those
concussions affected his actions on the day in question. It is well recognized
that a trial court is not obligated to find a circumstance mitigating because it is
advanced as such by the defendant. Weedman v. State, 21 N.E.3d 873, 893 (Ind.
Ct. App. 2014), trans. denied. Karr also takes issue with the fact that the trial
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court stated, “[Y]ou are guilty of having raped . . . [A.P.] . . . and having
battered her rather severely in the presence, physical presence of her daughter.
These are serious crimes.” Tr. Vol. II at 233. He urges that there was no
evidence of “severely” beating A.P., and the trial court erred when it used that
circumstance as an aggravator. Upon review of the record, we find that,
contrary to Karr’s claim, the trial court did not use this as an aggravator, and,
rather, as the State suggests, it was a comment that was part of the court’s
discussion of the jury’s verdict. The trial court did not rely on the severity of
the battery as an aggravating circumstance. Karr has failed to establish that the
trial court abused its discretion when it sentenced him.
III. Ineffective Assistance of Trial Counsel
[40] Karr claims that the trial court erred when it determined that he did not receive
ineffective assistance of trial counsel and, so finding, denied his motion for a
new trial, which sought relief on that basis. To succeed on a claim of ineffective
assistance of counsel, a petitioner must show not only that his trial counsel’s
representation fell below an objective standard of reasonableness, but also that
the deficient performance resulted in prejudice. Manzano v. State, 12 N.E.3d
321, 325 (Ind. Ct. App. 2014) (quoting Timberlake v. State, 753 N.E.2d 591, 603
(Ind. 2001)) (quotations omitted), trans. denied, cert. denied 135 S. Ct. 2376(2015). To establish prejudice, a petitioner must show that counsel’s errors
were so serious as to deprive him of a fair trial because of a reasonable
probability that, but for counsel’s unprofessional errors, the result would have
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been different. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.[41] There is a strong presumption that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. Id. Counsel is afforded considerable discretion in choosing strategy
and tactics, and these decisions are entitled to deferential review. Id. Isolated
mistakes, poor strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. Id. at 325-26. We do not second
guess counsel’s strategic decisions requiring reasonable professional judgment
even if the strategy or tactic, in hindsight, did not best serve the defendant’s
interests. Elisea v. State, 777 N.E.2d 46, 50 (Ind. Ct. App. 2002). If it is easier to
dispose of an ineffectiveness claim by analyzing the prejudice prong alone, that
course should be followed. Manzano, 12 N.E.3d at 326.
[42] Karr asserts that, at trial, “defense counsel’s theory was that the allegations
were fabricated[,]” and “Thus, it was incumbent on trial counsel to present all
readily available sources of evidence to prove that these event[s] did not occur.”
Appellant’s Br. at 31. Karr maintains that Taylor should have but failed to
present evidence of drug consumption by A.P. at or near the time of the
incidents, through investigation and discovery of medical information such as
A.P.’s prescriptions that she was taking or had been prescribed or the E.R.
records on the night in question. He suggests that if the jury knew of A.P.’s
prescribed pain and anxiety medication, trial counsel could have effectively
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impeached her regarding her ability to remember and recount the events in
question.
[43] At the hearing on Karr’s motion for a new trial, Taylor was asked about why he
“did not explore [A.P.’s] drug use prior to or during the first offense[,]” and he
replied that Karr would be the only person who would have been able to testify
to that, and Karr did not testify. Tr. Vol. II at 97. Karr argues that Taylor could
have requested her prescription medication or “asked A.P. when she testified.”
Appellant’s Br. at 33. A pharmacy bag was admitted during the hearing on
Karr’s motion for a new trial indicating that A.P. filled a prescription for Narco
on May 5, 2015. Also admitted at the hearing were medical records from
A.P.’s doctor’s visit on May 7, 2015, which reflected that A.P. reported taking
hydrocodone. Tr. Vol. III at 122; Ex. Vol. IV at 122. Karr urges that “[t]he jury
never heard this evidence because trial counsel did not present it.” Appellant’s
Br. at 34.
[44] Effective representation requires adequate pretrial investigation and
preparation, but we resist judging an attorney’s performance with the benefit of
hindsight. McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013).
Accordingly, when deciding a claim of ineffective assistance for failure to
investigate, we give a great deal of deference to counsel’s judgments. Id. at 201.
Strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable, and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitation on investigation. Id.Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 26 of 34
In other words, counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary.
Id.[45] Here, A.P. testified at the hearing that she may have filled a prescription earlier
in the day, but did not recall for certain if or where she did so, and she testified
that she was not impaired due to drug consumption and her memory was not
affected by any medication. A.P.’s testimony was clear and detailed, and there
was no evidence suggesting she did not remember the events in question. She
was consistent with what she told Officer Denison at the E.R. that night, and
there was no evidence that she exhibited signs of impairment. Karr has failed
to show that he was prejudiced by Taylor’s decision not to obtain and present
medical records evidence concerning any drugs A.P. may have consumed prior
to the domestic battery.
[46] Karr also asserts that trial counsel should have obtained medical records from
the E.R. as to what medications she received at the hospital, as that would have
affected her memory of what happened thereafter, including the forced oral sex
supporting the rape charges. He argues, “Whether she was under the influence
of anesthesia and dreaming or imagining the events was important to explore”
and “had trial counsel properly impeached her with her drug consumption of
opiates and anesthesia administered at the ER . . . the outcome would have
been different.” Appellant’s Br at 33, 43. Initially, we note that there is no
evidence in this record that A.P. was given “anesthesia” at any point. Upon
Karr’s questioning at the hearing on his motion for a new trial, A.P.
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acknowledged that she sent a text while at, or before leaving, the hospital to
someone, stating “I got an IV for meds so I’m feeling a lot better.” Tr. Vol. III
at 124. However, she also stated, “I'm not sure whether I actually received the
IV medications or if I just told him that.” Id. Furthermore, A.P. testified that
at no time was she impaired, and she had no issues with remembering what
Karr did to her. As the State observes, “[T]he totality of the evidence . . .
supports only that A.P. was clear of thought and speech at all relevant times[,]”
including in her interviews with nurse Bowens, who characterized A.P. as calm
but tearful at times, with Officer Denison, who described her as calm and
composed but concerned, and Detective Hackett, who said she was “matter of
fact” but sometimes would “tear up” while describing what happened.
Appellee’s Br. at 30; Tr. Vol. II at 146-47, 160, 182, 214-15. Furthermore, Taylor
testified at the hearing that it was his strategic decision not to obtain the
records. Tr. Vol. III at 124. Karr has failed to show that Taylor’s tactical
decision to not try to obtain A.P.’s prescription and medical records, which
may or may not have been discoverable or admissible, 7 was unreasonable or
that Karr was prejudiced by trial counsel’s choice.
[47] On appeal, Karr also contends that Taylor was ineffective for failing to present
to the jury that Officer McGovern conducted a forensic analysis of Karr’s
7
“To make a sufficient showing that [rape victim’s] prescription drug records were discoverable, [the
defendant] must demonstrate that his request was particular and material.” Williams v. State, 819 N.E.2d 381,
386 (Ind. Ct. App. 2004), trans. denied. “[W]hile generally evidence of drug use may be excluded at trial,
evidence of drug use affecting a witness’s ability to recall underlying events is admissible.” Id.Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 28 of 34
phone, but did not find any evidence that Karr (1) had accessed pornographic
videos, as A.P. had stated in her testimony, and (2) had photographed or
videotaped A.P., as she suspected when she saw the light of his phone behind
her. He argues, “Trial counsel never presented this affirmative evidence to the
jury[,]” which “was in the possession of the State and readily available,” and it
“showed that A.P.’s story could not be corroborated.” Appellant’s Br. at 38.
[48] As an initial matter, we disagree that A.P.’s story “could not be corroborated”;
as discussed above, the injuries and redness observed by nurse Bowens were
consistent with the reports that A.P. made to police. Regardless, even if the
trial counsel had presented the evidence, and the jury was persuaded that A.P.
was incorrect when she said that Karr was viewing pornography and recording
her acts with his cell phone, such evidence would not necessarily undermine her
account of the incidents, i.e., Karr has not established that he was prejudiced by
the failure to present the cell phone evidence.
[49] We further note that Karr was charged with five counts. Taylor successfully
argued for and received a directed verdict on one count and successfully
received an acquittal on one of the remaining counts. Several pieces of
evidence were excluded from evidence based upon Taylor’s objections, and he
thoroughly cross-examined witnesses, including A.P. We conclude that Karr
has not established either deficient performance or prejudice stemming from
trial counsel’s representation. The trial court correctly determined that Taylor
had not provided ineffective assistance and, therefore, appropriately denied
Karr’s motion for a new trial.
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IV. Denial of Post-Conviction Relief
[50] After the trial court denied his motion for a new trial, Karr filed a notice of
appeal with this court, which pursuant to his request, we dismissed without
prejudice, allowing him to file a petition for post-conviction relief, which he
did, also requesting and receiving a change of judge. The State filed a motion
for summary denial of Karr’s petition for post-conviction relief, which motion
the trial court granted on the basis that Karr was raising the same ineffective
assistance of counsel claims that that he had asserted in his motion for a new
trial – which had already been heard and decided – such that his post-
conviction claims were barred by res judicata. Karr asserts that the post-
conviction court’s denial of his petition was erroneous and asks us to vacate the
decision and remand to the post-conviction court for a hearing.
[51] A petitioner seeking post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. Post-Conviction Rule
1(5). A post-conviction court is permitted to summarily deny a petition for
post-conviction relief if the pleadings conclusively show the petitioner is entitled
to no relief. P-C.R. 1(4)(f). “‘An evidentiary hearing is not necessary when the
pleadings show only issues of law; [t]he need for a hearing is not avoided,
however, when a determination of the issues hinges, in whole or in part, upon
facts not resolved.’” Kuhn v. State, 901 N.E.2d 10, 13 (Ind. Ct. App. 2009)
(quoting Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied).
On appeal, “A petitioner who is denied post-conviction relief appeals from a
negative judgment, which may be reversed only if the evidence as a whole leads
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unerringly and unmistakably to a decision opposite that reached by the post-
conviction court.” Collins v. State, 14 N.E.3d 80, 83 (Ind. Ct. App. 2014).
[52] Karr’s petition for post-conviction relief asserted that Taylor provided
ineffective assistance in the following summarized ways: (1) he failed to offer at
trial phone records showing that Karr’s phone (a) did not contain photos or
videos of A.P. during the oral sex and (b) did not contain evidence that he
accessed pornographic sites; (2) he failed to obtain medical records of A.P. to
discover whether she had been administered anesthesia at the E.R. and failed to
obtain A.P.’s prescription records to determine if she had filled a prescription
for narcotics the same day as the alleged battery; and (3) he failed to offer at
trial a text message written by A.P. showing that (a) she filled a prescription for
Narco on May 5, 2015, and (b) she sent a text message to someone from the
hospital before leaving the E.R. stating that she had received an IV and felt
better. Appellant’s App. Vol. IV at 3-4.
[53] The post-conviction court determined that these issues were litigated at the two
hearings on Karr’s motion for a new trial and were barred by claim preclusion.
Id. at 130. We agree. “‘Res judicata, whether in the form of claim preclusion or
issue preclusion (also called collateral estoppel), aims to prevent repetitious
litigation of disputes that are essentially the same, by holding a prior final
judgment binding against both the original parties and their privies.’” M.G. v.
V.P., 74 N.E.3d 259, 264 (Ind. Ct. App. 2017) (quoting Becker v. State, 992
N.E.2d 697, 700 (Ind. 2013)). “‘Claim preclusion applies when the following
four factors are present: (1) the former judgment was rendered by a court of
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competent jurisdiction; (2) the former judgment was rendered on the merits; (3)
the matter now at issue was, or could have been, determined in the prior action;
and (4) the controversy adjudicated in the former action was between parties to
the present suit or their privies.’” Id. (quoting Dawson v. Estate of Ott, 796
N.E.2d 1190, 1195 (Ind. Ct. App. 2003)). When claim preclusion applies, all
matters that were or might have been litigated are deemed conclusively decided
by the judgment in the prior action. Id.[54] Here, the record reflects that, at the first hearing on Karr’s motion for a new
trial, held on September 2, 2016, Karr presented testimony from trial counsel,
Taylor, and, among other things, Taylor testified as to what medical records he
requested or did not request, what witnesses he called or did not call, and why
he did not explore alleged drug use by A.P., explaining that his actions were
based upon strategic decisions and assessments. Understanding that Karr’s
counsel, Ruemmele, needed a trial transcript to further explore ineffectiveness
issues, the trial court scheduled a second hearing, and it directed that a trial
transcript be prepared promptly for Ruemmele’s use. The second hearing was
held September 19, at which Karr presented the testimony of four witnesses,
including A.P., who testified that she was not impaired and her memory was
not affected by any medications. Officer McGovern testified that, while his
forensic analysis of Karr’s cell phone did not show that Karr accessed
pornographic sites or had taken pictures or video of A.P., he also testified that it
is not always possible to recover deleted material from a phone. Karr also
presented seven exhibits, including a prescription bag from CVS pharmacy for a
Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 32 of 34
hydrocodone-acetaminophen prescription for A.P. and medical records from
Community North from her E.R. visit. Ex. Vol. IV at 119, 121-22 (Def. Exs. D,
E).
[55] Karr refers us to the recognized principle that “[a]n issue previously considered
and determined in a defendant’s direct appeal is barred for post-conviction
review on grounds of prior adjudication - res judicata[,]” and urges that, here,
“Because Karr has not challenged the adequacy of his trial representation on
direct appeal, his ineffective assistance claims are not waived.” Appellant’s Br. at
26-27 (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531
U.S. 829 (2000), and Overstreet v. State, 877 N.E.2d 144, 178 (Ind. 2007), cert.
denied, 555 U.S. 972 (2008)). We do not find that Karr’s claims are waived; we
find that his claims of ineffective assistance of counsel have already been raised,
heard, and decided. To the extent that Karr is arguing that only those claims of
ineffective assistance of counsel that were raised on direct appeal may be barred
by res judicata, we disagree with his suggestion that direct appeal is the exclusive
basis for rendering the ineffectiveness assistance claims barred. We find that, in
the unique posture and context of this case,8 it was not error for the post-
conviction court to find that Karr was not entitled to relitigate the claims, and
8
The State suggests that Karr’s petition for post-conviction relief was the functional equivalent to a
successive petition “because it raised only the same claims previously presented to the trial court for
adjudication[,]” and our Supreme Court has explained that, “[A] defendant is entitled to one post-conviction
hearing and one post-conviction opportunity to raise the issue of ineffective assistance of trial counsel in the
absence of newly discovered evidence or a Brady violation.” Appellee’s Br. at 27 (citing Daniels v. State, 741
N.E.2d 1177, 1184-85 (Ind. 2001)). Our holding today is consistent with the Supreme Court’s reasoning.
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we find no error with its decision to grant the State’s request for summary
denial of Karr’s petition for post-conviction relief.9
[56] Affirmed.
[57] Bailey, J., and Pyle, J., concur.
9
We also reject Karr’s claim that – due to trial counsel’s alleged ineffectiveness, combined with the trial
court’s comment during the hearing on the motion for a new trial, where the trial court stated that it was
“pretty certain” that it would not have granted any request by trial counsel for A.P.’s prescription records, Tr.
Vol. III at 102 – he was denied his right to explore bias and motive, was thereby denied his right to
confrontation and a fair trial, and was entitled to post-conviction relief. Reply Br. at 14.
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