MEMORANDUM DECISION
Crone, Judge.
Case Summary
[1] Christian Ricker appeals the post-conviction courts denial of his petition for post-conviction relief (PCR), alleging prosecutorial misconduct and ineffective assistance of trial counsel. We affirm.
Facts and Procedural History
[1] In Rickers direct appeal, the relevant facts were summarized as follows:
In May of 2009, Ricker began a romantic relationship with L.S.’s mother. L.S. was seven years old at the time. Starting in June of 2009, Ricker began spending a few nights a week at their house. On occasion, Ricker watched L.S. and her siblings while L.S.’s mother was at work.
The first inappropriate contact between Ricker and L.S occurred during the summer between L.S.’s third and fourth years in school. Ricker brought her downstairs, sat on the couch next to her, and touched L.S.’s chest over her clothes. The next inappropriate contact occurred later that year after school had started. Ricker rubbed L.S.’s leg and crotch over her clothes while she was sitting on the living room couch. A third incident occurred approximately one month later when Ricker entered L.S.’s bedroom, grabbed her arm, and brought her downstairs to the living room. Ricker removed L.S.’s shorts and underwear, took his own clothes off, placed a “balloon” on his “private part,” and had intercourse with her. This lasted for about five minutes before L.S. kicked Ricker, grabbed her clothes, and went to her room. Before she left, Ricker told L.S. that he would hit her if she told anyone. The fourth instance of inappropriate contact occurred approximately one week later. L.S. was in the living room wearing shorts and a tank top. Ricker took his clothes off and removed L.S.’s shorts, placed a “balloon thing” on his “private,” and put it inside her. Ricker stopped because L.S.’s mother came home.
On December 23, 2011, L.S. disclosed the sexual abuse to her fathers fiancée, Karagh Brennan. Brennan told L.S. it would be investigated. In May of 2012, L.S. opened up to Brennan again and disclosed additional abuse that had not been disclosed the first time.
The investigation involved interviews between L.S. and Carolyn Hahn, an employee with the Child Abuse Service Investigation Education Center. Hahn is a child forensic interviewer at the Center with an undergraduate degree and masters work in elementary education. She has been a forensic interviewer since 1996 and has conducted over 5,000 interviews with alleged child abuse victims. Hahn has been trained in the use of [Child Abuse Accommodation Syndrome], a system of clinical accommodations to help children struggling with child abuse. During Hahns interview with L.S. on December 29, 2011, L.S. gave a partial disclosure to Hahn regarding her sexual abuse. On or about June 12, 2012, a second interview took place during which L.S. made additional disclosures about her sexual abuse.
On September 24, 2012, the State charged Ricker with three counts of Class A felony child molesting, one count of Class C felony child molesting, and one count of Class D felony intimidation.
Ricker v. State, No. 71A03-1407-CR-266, 2015 WL 2329121, at *1-2 (Ind. Ct. App. May 15, 2015) (citations and footnote omitted).
[2] On December 9, 2013, Martin McCloskey (Trial Counsel) entered his appearance for Ricker. Rickers jury trial was held on April 14 through 17, 2014. On the first day of the trial, the State moved to dismiss Count 3, the class A felony child molesting count that alleged Ricker had oral sex with L.S. The trial court granted the motion and dismissed the count with prejudice. At the conclusion of the trial, the jury found Ricker guilty of the remaining two counts of class A felony child molesting, class C felony child molesting, and class D felony intimidation.
[3] On May 19, 2014, after Ricker was found guilty but before he was sentenced, Charles Lahey appeared as Rickers new counsel (Sentencing Counsel). That same day, Sentencing Counsel filed an Indiana Trial Rule 60(B) motion for relief from judgment, alleging that L.S. “may have made false allegations of molestation against other men” that the State did not disclose to Trial Counsel even though the allegations were “known to the State, had been investigated by [the State, but had not been] prosecuted.” PCR App. Vol. 2 at 85.
[4] On July 25, in response to Rickers Trial Rule 60(B) motion, the State filed an affidavit from Aimee Herring, the deputy prosecutor who had tried Rickers case. In her affidavit, Deputy Prosecutor Herring stated that she had met with L.S. on multiple occasions and that L.S. did not disclose any allegations of molestation other than those alleged in the charging information for the instant case. She further stated that “no notice was given to [Trial Counsel] ․ of any allegations of other molestations ․ as the State was not aware of any information that would need to be disclosed[.]” Id. at 87.
[5] At the sentencing hearing held that same day, the trial court noted receipt of Deputy Prosecutor Herrings affidavit and asked Sentencing Counsel if he was ready to proceed with sentencing. Sentencing Counsel answered in the affirmative. The court did not rule on Rickers Trial Rule 60(B) motion. The court imposed an aggregate sixty-two-year sentence.
[6] On direct appeal, Ricker challenged his convictions on grounds that L.S. presented incredibly dubious testimony that was insufficient to support his convictions and that the admission of testimony concerning Child Abuse Accommodation Syndrome amounted to fundamental error. Another panel of this Court affirmed Rickers convictions.
[7] On May 23, 2019, Ricker filed a PCR petition, raising freestanding claims that the State committed prosecutorial misconduct by (1) failing to disclose exculpatory evidence and (2) attempting to condition the jury during voir dire. Ricker also alleged that Trial Counsel was ineffective in the following ways: (1) eliciting testimony about L.S.’s sisters disclosure of abuse, (2) failing to cross-examine L.S. regarding her prior inconsistent statements, (3) failing to object to the “prejudicial drumbeat repetition” of L.S.’s out-of-court statements to witnesses, and (4) failing to object to vouching testimony. Id. at 42. He also argued that the cumulative effect of Trial Counsels errors had denied him a fair trial.
[8] At the hearing on the matter, held on April 23 and June 4, 2021, Ricker called Deputy Prosecutor Herring and Trial Counsel as witnesses. Following the hearing, the State submitted proposed findings and conclusions.
1
On October 6, 2023, the post-conviction court issued its order denying relief. This appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
[9] Ricker asserts that the post-conviction court erred in denying his PCR petition. “Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence.” Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b)), cert. denied (2020). “The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal.” Id. A defendant who files a petition for post-conviction relief “bears the burden of establishing grounds for relief by a preponderance of the evidence.” Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017); Ind. Post-Conviction Rule 1(5). Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment:
Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction courts decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post-conviction courts factual findings for clear error, but do not defer to its conclusions of law.
Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations, emphasis, and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction courts decision. Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).
Section 1 – Ricker has waived his freestanding claims of prosecutorial misconduct because they were known and available on direct appeal but not raised.
[10] Post-conviction relief is a “narrow remedy” that is limited to the grounds enumerated in Indiana Rules for Post-Conviction Relief. Kirby v. State, 95 N.E.3d 518, 520 (Ind. 2018). Those grounds may be generally characterized as “limited collateral challenges to a conviction and sentence” involving issues which were unknown at the time of trial or unavailable on direct appeal. Wilson v. State, 157 N.E.3d 1163, 1169 (Ind. 2020). Issues that were available for direct appeal but were not raised are waived, and issues that were raised on direct appeal that were decided adversely to the defendant are res judicata. Id. On review of the denial of post-conviction relief, this court does not review freestanding claims of error, even those presented as claims of fundamental error, if those errors were known and available to the defendant on direct appeal but were not raised. Id.
Section 1.1 – Ricker has waived his freestanding claim that the State committed prosecutorial misconduct by failing to disclose exculpatory evidence that L.S. previously had made false accusations of molestation.
[11] Ricker contends that the State failed to disclose that L.S. “had previously made a false accusation of molestation against another person[.]” Appellants Br. at 9. Rickers contention stems from actions that occurred during his trial. At the start of the trial, the parties argued over motions in limine. The State had asked to limit “[a]ny mention of other forensic interviews conducted by the [Child Abuse Service Investigation Education Center] with L.S.”—other than the “two [interviews] dealing with [the instant] case [that were] conducted on December 29, 2011, and June 12, 2012[.]” PCR App. Vol. 2 at 83. At trial, the State clarified that its motion sought to limit mention of “any other forensic interviews ․ dealing with cases other than this one[.]” Trial Tr. Vol. 1 at 10.
[12] During cross-examination of L.S., Trial Counsel asked L.S. whether she had “ever had anyone have their thing inside of [her]”—excluding the instances that she had already testified to regarding Ricker having intercourse with her. Trial Tr. Vol. 2 at 334. L.S. replied, “No.” Id. The State and Trial Counsel then approached the bench and, in a sidebar, discussed the question Trial Counsel had posed to L.S. The trial court ruled that the question violated the States motion in limine, and the court admonished the jury to disregard the question. At the subsequent PCR evidentiary hearing, Trial Counsel testified that the discussion during the sidebar had led him to believe that “there might have been other occasions” where L.S. had made “some sort of” previous allegations of sexual abuse. PCR Tr. Vol. 2 at 70.
[13] Ricker now raises the claim that the State committed prosecutorial misconduct by failing to disclose that L.S. might have made previous allegations of sexual abuse against another man. However, this issue was known and available to him at trial and on direct appeal. Issues available on direct appeal but not raised are waived. See Wilson, 157 N.E.3d at 1169 (potential post-conviction relief is limited in scope to issues unknown at trial or unavailable on direct appeal). Thus, Ricker has waived this issue for our review.
Section 1.2 – Ricker has waived his freestanding claim that the State committed prosecutorial misconduct by failing to disclose evidence that L.S. had made prior inconsistent statements regarding the sexual abuse.
[14] Ricker also contends that the State failed to disclose that L.S. had provided inconsistent statements regarding the sexual abuse Ricker perpetrated upon her. Ricker bases his contention on the reasoning Deputy Prosecutor Herring provided, at the start of the jury trial, for moving to dismiss Count 3, the class A felony child molesting count that alleged that Ricker had oral sex with L.S. The deputy prosecutor stated that the dismissal was “based upon a previous deposition [that had been] conducted with the victim in this case as well as numerous conversations with her” and that the “reason for moving to dismiss [the count] ․ [is because] Im not sure exactly what [L.S.] is going to say about those type[s] of things.” Trial Tr. Vol. 1 at 11, 15. Ricker maintains that the deputy prosecutors failure to disclose the “inconsistencies between [L.S.’s] earlier statements and statements [L.S.] made to the [deputy prosecutor] during pretrial preparation” was “likely an effort to make these prior inconsistent statements to the Prosecutor irrelevant.” Appellants Br. at 14-15.
[15] However, this issue too was known and available but not raised in Rickers direct appeal. Therefore, it is waived and unavailable for post-conviction review. See Wilson, 157 N.E.3d at 1169.
Section 1.3 – Ricker has waived his freestanding claim that the State attempted to condition the jury pool during jury selection.
[16] Next, Ricker contends that the States questioning during jury selection amounted to an attempt to condition the potential jurors. Ricker argues that during voir dire, Deputy Prosecutor Herring “[tried] the case ․ by planting in the jurors’ minds a fact pattern [that the impaneled jurors would] instantly recognize when [the] evidence [was presented] at trial[.]” Appellants Br. at 16. In support of his argument, Ricker focuses our attention on several examples of statements the deputy prosecutor made during voir dire that purport to show the States attempt to condition the jurors.
[17] Potential jurors may be asked questions during voir dire to eliminate bias but may not be asked questions meant “to condition them to be receptive to the questioners position.” Von Almen v. State, 496 N.E.2d 55, 59 (Ind. 1986). “Questions which seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are improper.” Id.
[18] Here, the post-conviction court determined that Rickers jury conditioning claim was barred by procedural default, and we must agree. Rickers claim was known and available but not raised on direct appeal, so it is waived. See Wilson, 157 N.E.3d at 1169.
Section 2 – Ricker has failed to establish that Trial Counsel was ineffective.
[19] Ricker maintains that he is entitled to post-conviction relief because he was denied the right to effective assistance of trial counsel guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 686 (1984) (“[T]he right to counsel is the right to effective assistance of counsel.”) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To succeed on an ineffective assistance of counsel claim, the defendant must satisfy the two-part test articulated in Strickland. Humphrey, 73 N.E.3d at 682. “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.’ ” Id. (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). When considering a claim of ineffective assistance of counsel, we strongly presume “that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Hinesley, 999 N.E.2d at 982 (citation omitted). We presume that counsel performed effectively, and a defendant must offer strong and convincing evidence to overcome this presumption. Id. Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance. Id.
[20] To satisfy the second prong of the Strickland test, the defendant must show prejudice. Humphrey, 73 N.E.3d at 682. To demonstrate prejudice from counsels deficient performance, a petitioner need only show “a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” Middleton v. State, 72 N.E.3d 891, 891 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 891-92.
[21] “Although the performance prong and the prejudice prong are separate inquiries, failure to satisfy either prong will cause the claim to fail.” Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011). “If we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsels performance was deficient.” Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). “Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone.” Id.
Section 2.1 – Ricker has failed to show that Trial Counsel performed deficiently by introducing evidence that L.S.’s sister made an allegation of sexual abuse that indicated Ricker was the perpetrator.
[22] Ricker contends that Trial Counsel was ineffective “for eliciting testimony alleging additional, uncharged criminal sexual conduct by Ricker upon” L.S.’s sister, M.S. Appellants Br. at 20. During cross-examination of Carolyn Hahn, the child forensic interviewer, Trial Counsel asked whether M.S. had disclosed during an interview that she, too, had been sexually abused. Hahn replied, “Yes.” Trial Tr. Vol. 2 at 427. A juror sent a follow-up question to the trial court, and the court asked Hahn, “[W]ithout getting into the details of ․ [M.S.’s] disclosure of sexual abuse[,] was it a disclosure about herself or about [L.S.]?” Id. at 430. Hahn replied, “About herself, I believe.” Id.
[23] Later in the trial, when a juror sent a follow-up question to the trial court during a different witnesss testimony about whether M.S.’s disclosure concerned Ricker, the court determined that the question was irrelevant and did not pose it to the witness. In a subsequent discussion bench conference outside the presence of the jury, Trial Counsel expressed a desire to call M.S. to testify about allegations of Ricker sexually abusing her. The trial court determined that M.S.’s testimony was “not relevant to the case involving [L.S.]” Id. at 435.
[24] Ricker maintains that the outcome of the trial would have been different had Trial Counsel “avoided introducing this purely prejudicial evidence” that, according to Ricker, could not be construed as “the exercise of any conceivable trial tactic[.]” Appellants Br. at 20. We disagree. During the four-day jury trial, evidence that M.S. had also been sexually abused was limited to the question that Trial Counsel posed to Hahn on cross-examination and the follow-up question posed by the juror. No evidence was presented at trial to indicate that Ricker had sexually abused M.S. And Trial Counsel testified at the PCR evidentiary hearing that “[t]here was a strategic reason” behind asking whether M.S. had made an allegation of sexual abuse. PCR Tr. Vol. 2 at 69.
[25] The post-conviction court concluded that Trial Counsel did not render ineffective assistance of counsel. As the court observed, “[w]hile reasonable minds may disagree about this trial strategy and its potential prejudice to [Ricker], the strategy was cut short at trial[,]” and “[n]o evidence was elicited that anyone other than [L.S.] made any allegations of sexual abuse about [Ricker].” Appealed Order at 6.
[26] Under our standard of review, we presume that counsel performed effectively. See Hinesley, 999 N.E.2d at 982. Ricker has not shown either deficient performance or prejudice on this issue. Therefore, his ineffectiveness claim on this basis fails.
Section 2.2 – Ricker has failed to show that Trial Counsel performed deficiently by failing to cross-examine L.S. regarding her prior inconsistent statements.
[27] Next, Ricker contends that Trial Counsel rendered ineffective assistance by failing to adequately cross-examine L.S. regarding her prior inconsistent statements to “State authorities.” Appellants Br. at 22. “It is well settled that the nature and extent of cross-examination is a matter of strategy delegated to trial counsel.” Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997), trans. denied. And “the method of impeaching witnesses is a tactical decision and a matter of trial strategy that does not amount to ineffective assistance.” Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind. 2010). Here, however, even assuming arguendo that Trial Counsels cross-examination of L.S. constituted deficient performance, Ricker fails to offer any argument as to how he was prejudiced by such alleged deficiency. Therefore, he has failed to show that Trial Counsel was ineffective in this respect. See 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.”).
Section – 2.3 Ricker has failed to show that Trial Counsel performed deficiently by failing to object to repetitious hearsay testimony.
[28] Next, Ricker contends that Trial Counsel was ineffective for failing to object to “multiple hearsay violations by [S]tate witnesses in which they were permitted to testify to statements made to them by L.S.[,]” which “allowed for a prejudicial drumbeat repetition of L.S.’s [out-of-court] statements to witnesses.” Appellants Br. at 23. However, Ricker has not provided any specific objectionable instances of hearsay. Instead, he baldly states that Trial Counsel failed to object to “most of [the] testimony” concerning L.S.’s out-of-court statements to her “step-mother, mother, case workers[,] and police[,]” and introduced “all” of L.S.’s statements to Hahn, including “full testimony” concerning Child Abuse Accommodation Syndrome. Id. at 22.
[29] We emphasize that a brief must be prepared so that each judge, considering the brief alone, and independent of the transcript and record, can intelligently consider the question presented. Ramsey v. Rev. Bd. of Ind. Dept of Workforce Dev., 789 N.E.2d 486, 488 (Ind. Ct. App. 2003) (citing Terpstra v. Farmers & Merch. Bank, 483 N.E.2d 749, 753 (Ind. Ct. App. 1985)). Rickers briefing on this issue offers us no ability to intelligently consider the alleged repetitious hearsay statements and evaluate their prejudicial effect. Thus, we agree with the State that Ricker has waived this argument by not developing it as required by Indiana Appellate Rule 46(A)(8). See Isom v. State, 170 N.E.3d 623, 648 (Ind. 2021). Accordingly, Ricker has wholly failed to establish that Trial Counsel performed deficiently by failing to object to repetitious hearsay testimony.
Section 2.4 – Ricker has failed to show that Trial Counsel performed deficiently by failing to object to improper vouching statements and testimony.
[30] Ricker also contends that Trial Counsel was ineffective for failing to object to improper vouching statements and testimony, basing his claim on the repetition of L.S.’s out-of-court statements. However, we need not reach the issue because Ricker did not argue this ground below. Rather, his vouching argument to the post-conviction court in his PCR petition was based on Hahns testimony “in the context of Child Abuse Accommodation Syndrome.” PCR App. Vol. 2 at 43. Rickers vouching claim is therefore waived. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”), cert. denied (2002).
Section 3 – Ricker has failed to show that the cumulative effect of Trial Counsels errors deprived him of effective assistance of counsel.
[31] Ricker also contends that Trial Counsels deficient performance resulted in cumulative error that prejudiced him. However, because we have concluded that there was no error, we also conclude that there was no cumulative error. Thus, we affirm the post-conviction courts denial of post-conviction relief on Rickers claims of prosecutorial misconduct and ineffective assistance of trial counsel.
[32] Affirmed.
FOOTNOTES
1
. Rickers proposed findings and conclusions are not included in his appendix and are not reflected in the chronological case summary. However, the States proposed findings and conclusions referenced Ricker having filed a brief that withdrew two of his ineffective assistance of trial counsel claims, namely, counsels failure to object to Child Abuse Accommodation Syndrome evidence and counsels failure to call medical witnesses and introduce certain medical records into evidence.
Memorandum Decision by Judge Crone
Judges Bailey and Pyle concur.
Bailey, J., and Pyle, J., concur.