Larry Lillard v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 21 2017, 9:51 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Deidre R. Eltzroth Lyubov Gore
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry Lillard, February 21, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A02-1608-PC-1879
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Respondent Judge
The Honorable Steven J. Rubick,
Magistrate
Trial Court Cause No.
49G01-0402-PC-23764
Baker, Judge.
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[1] Larry Lillard appeals the judgment of the post-conviction court, which denied
his petition for post-conviction relief. He argues that he received the ineffective
assistance of trial and appellate counsel. Finding that he has not made the
requisite showing that he suffered any prejudice, we affirm.
Facts
[2] On July 28, 2005, Lillard was found guilty of Class A felony child molesting
and was determined to be a habitual offender. The underlying facts are as
follows: “Lillard was married to the aunt of C.S. and lived in Marion County.
In 2002, when C.S. was eleven years old, Lillard asked her to massage his back.
As C.S. did so, Lillard reached inside her underwear and inserted his finger in
her vagina.” Lillard v. State, No. 49A02-0509-CR-868, slip. op. at *2 (Ind. Ct.
App. May 26, 2006). The trial court sentenced Lillard to sixty years. On direct
appeal, Lillard argued that his incarceration had violated Indiana Criminal
Rule 4(C); that C.S. was improperly allowed to testify about other, uncharged
acts of molestation; and that the trial court improperly excluded a defense
exhibit on hearsay grounds (“Exhibit D”). In affirming the trial court, we
found that Lillard’s incarceration did not violate Rule 4(C) and that his other
two arguments were waived.
[3] Lillard filed a petition in 2012 for post-conviction relief, but withdrew it without
prejudice. He filed a second petition on May 8, 2014, which he later amended.
Lillard argued that he received the ineffective assistance of trial counsel, citing
trial counsel’s failure to lay a proper foundation for Exhibit D or object to the
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testimony of uncharged acts of molestation, and the ineffective assistance of
appellate counsel, citing appellate counsel’s failure to support arguments with
citations to authority or cogent reasoning. After a January 19, 2016, hearing,
the post-conviction court denied Lillard’s petition. He now appeals.
Discussion and Decision
[4] Lillard has three arguments on appeal: (1) that his trial counsel should have
timely objected to the evidence of uncharged molestations, and if he would
have done so, such evidence would have been excluded under Indiana
Evidence Rule 404(b); (2) that his trial counsel should have laid a proper
foundation for Exhibit D so that he could use it to impeach C.S.’s testimony;
and (3) that his appellate counsel provided ineffective assistance by failing to
properly cite the record or case law, which resulted in the waiver of two
arguments.
[5] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004). When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment. Id. To prevail on appeal from the denial of post-conviction relief, a
petitioner must show that the evidence as a whole 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 made findings of fact and conclusions of law in
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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).
[6] 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). The two prongs of
the Strickland test are separate and independent inquiries; thus, if it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
that course should be followed. Williams v. State, 706 N.E.2d 149, 154 (Ind.
1999) (citing Strickland, 466 U.S. at 697).
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I. Other Acts Evidence
[7] In order to make the required showing of prejudice regarding trial counsel’s
alleged failure to object to C.S.’s testimony, Lillard must show that a proper
objection would have led to the exclusion of the evidence. Lillard points to
Evidence Rule 404(b), which provides in relevant part as follows:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This
evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.
[8] At trial, C.S. testified about two separate incidents of molestation. In the first,
Lillard asked C.S. for a back massage while he was laying on the ground on his
stomach. After she climbed on his back, he reached his hand under her skirt
and placed his fingers into her vagina for about thirty seconds. In a second
incident, occurring during the same summer, Lillard carried C.S. to his
bedroom, removed her skirt and underwear, and again placed his fingers into
her vagina.
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[9] Lillard argues that the second incident was used to prove his propensities,
which Evidence Rule 404(b) prohibits. He cites our opinion in Greenboam v.
State, 766 N.E.2d 1247 (Ind. Ct. App. 2002). In that case, Greenboam was
convicted of four counts of Class A child molestation. Id. at 1249. At trial, the
State presented evidence of Greenboam’s two prior convictions for Class C
child molestation that he had received two years prior. Id. at 1252. We rejected
the State’s argument that these molestations occurring two years prior were part
of a “common scheme or plan” exception to Evidence Rule 404(b), and we
reversed. Id. at 1254.
[10] We note that in the present case, Lillard was charged with committing deviate
sexual conduct “on or about June 1, 2002[,] through August 31[,] 2002 . . . .”
Appellant’s App. Vol. II p. 204. C.S.’s testimony involved molestations Lillard
committed within this period. The State did not use the first incident to bolster
the second, or the second the first; either incident would support Lillard’s
conviction. See Marshall v. State, 893 N.E.2d 1170, 1175-76 (Ind. Ct. App. 2008)
(where “repeated molestations . . . fell within the respective time periods
outlined in the charging information . . . the evidence . . . was presented as
direct evidence of the charged molestations”).
[11] Because we find that C.S.’s testimony was admissible and would have been
admitted over trial counsel’s objection, Lillard cannot show that he suffered any
prejudice in this regard. Accordingly, this argument is unavailing.
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II. Exhibit D
[12] At trial, Lillard attempted to introduce an intake form produced by the hospital
to which C.S. went. A handwritten note on the form reads, “Thinks a family
member molested her – Ø penetration fondling – Doesn’t want exam if not
necessary. Has happened 5 times. Last time about 8mos ago.” Def. Ex. D.
Lillard interprets this remark to be an admission made by C.S. to a hospital
worker that there was no penetration. The State objected to the document on
hearsay grounds, and trial counsel sought its admission under the business
records exception or the statement made for medical treatment exception. The
trial court sided with the State, saying “the information contained therein is on
its surface unreliable because it doesn’t identify who was making the statement
or why . . . .” Tr. p. 123-24. The document appears to be signed by C.S.’s
mother rather than C.S.
[13] Lillard acknowledges that his trial counsel attempted to have Exhibit D
admitted as a business record or a statement made for medical treatment. But
he argues that counsel should have conducted further investigations to have
additional bases for admission.
[14] “[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Boesch v.
State, 778 N.E.2d 1276, 1284 (Ind. 2002). Here, trial counsel made the decision
that he could have Exhibit D admitted under two different theories, and so
ended his investigations into further bases for admission. In post-conviction
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proceedings, to satisfy his burden of proving that counsel was ineffective for
failing to investigate, the petitioner is required to go beyond the trial record to
show what additional preparation, if undertaken, would have produced. Woods
v. State, 701 N.E.2d 1208, 1214 (Ind. 1998). As it stands, we are not even sure
that the statement “Ø penetration fondling” means that there was no
penetration. Even if it did, we do not know whether such a statement was
made by C.S., her mother, or whether it was a summary made by a hospital
worker. To be sure, Lillard provided the post-conviction court with an affidavit
from a hospital worker who testified that, typically, “the employee who first
speaks with the patient would ask the patient why he or she was there . . . and
would enter the patient’s own words or a summation of those words into the
‘reason for visit’ blank . . . .” Pet’r’s Ex. B. But the affiant also testified, “In the
case of a minor patient, sometimes details are provided by a guardian.” Id. In
other words, further investigations have also failed to clarify who made the
statement transcribed in Exhibit D. The post-conviction court did not admit
this document because the affiant explicitly disclaimed any knowledge of who
spoke with C.S. in 2002.
[15] In sum, Lillard has not convinced us that additional investigations would have
produced sufficient information to ensure Exhibit D’s admission. Beyond that,
it is complete speculation whether this single notation would have made the
jury disbelieve C.S.’s account. As such, Lillard is far from showing “that the
evidence as a whole leads unerringly and unmistakably to a conclusion opposite
to that reached by the [post-conviction] court.” Weatherford, 619 N.E.2d at 917.
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III. Appellate Counsel
[16] Lillard argues that he received the ineffective assistance of appellate counsel. In
the direct appeal brief, appellate counsel acknowledged that trial counsel had
failed to make a timely objection to C.S.’s testimony of other acts of
molestation, that trial counsel had thereby waived the issue, and that, therefore,
the issue before us was one of fundamental error. Lillard, slip. op. at *7. But
then appellate counsel himself waived the fundamental error argument “by
failing to support it with citation to authority or cogent reasoning.” Id.
Appellate counsel’s failure to make pinpoint citations in his argument regarding
Exhibit D, “to help us determine where, within a decision, support for his
contentions may be found,” id. (citing Haddock v. State, 800 N.E.2d 242, 245 n.5
(Ind. Ct. App. 2003)), also resulted in the waiver of that argument.
[17] We agree with Lillard that his appellate counsel was not an exemplar of
effective advocacy. But as noted above, Lillard’s claim of ineffectiveness of
appellate counsel can only succeed upon a showing that a competent attorney
would have achieved a different result. We have already found that C.S.’s
testimony regarding multiple acts of molestation would have been admitted
over a timely 404(b) objection, and that Lillard has failed to show that
additional investigations would have led to the admission of Exhibit D.
Therefore, Lillard has failed to prove that a competent appellate counsel would
have achieved a different result. Because he was not prejudiced, Lillard’s claim
that he received the ineffective assistance of appellate counsel is unavailing.
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[18] The judgment of the post-conviction court is affirmed.
Mathias, J., and Pyle, J., concur.
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