Absher v. State, 012221 INCA, 20A-PC-1227

Docket Nº:20A-PC-1227
Opinion Judge:CRONE, JUDGE.
Party Name:James C. Absher, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent
Attorney:ATTORNEYS FOR APPELLANT Amy E. Karozos Public Defender of Indiana Lindsay Van Gorkom Deputy Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Judge Panel:Najam, J., and Riley, J., concur.
Case Date:January 22, 2021
Court:Court of Appeals of Indiana

James C. Absher, Appellant-Petitioner,

v.

State of Indiana, Appellee-Respondent

No. 20A-PC-1227

Court of Appeals of Indiana

January 22, 2021

Appeal from the Floyd Circuit Court The Honorable Maria D. Granger, Special Judge Trial Court Cause No. 22C01-1311-PC-12

ATTORNEYS FOR APPELLANT Amy E. Karozos Public Defender of Indiana Lindsay Van Gorkom Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

CRONE, JUDGE.

Case Summary

[¶1] Following his convictions for Count 1, class A felony child molesting, Count 2, class A felony child molesting, and Count 3, class C felony child molesting, James C. Absher sought and was denied post-conviction relief (PCR). He now appeals the denial of his PCR petition, arguing that he is entitled to relief because his trial and appellate counsel provided ineffective assistance. He asserts that his trial counsel provided ineffective assistance in two ways: (1) failing to object to an untimely amendment to the charging information that added Counts 2 and 3 and (2) failing to object to the prosecutor's comments during closing argument. We agree that Absher's trial counsel provided ineffective assistance by failing to object to the untimely amendment to the charging information, and therefore the post-conviction court improperly denied relief on this claim. However, we reach the opposite conclusion with respect to Absher's claim regarding his trial counsel's failure to object to the prosecutor's comments. Absher also asserts that his appellate counsel provided ineffective assistance by failing to raise a claim that the evidence was insufficient to support his conviction for Count 2. We agree.[1] Accordingly, we affirm in part, reverse in part, and remand with instructions to vacate the convictions and sentences for Counts 2 and 3.

Facts and Procedural History

[¶2] Absher and Laura Rawlings lived together and were involved in a romantic relationship from 1997 until 2001. They had a daughter together, J.L. By May of 2004, Absher and Rawlings were separated. Rawlings lived with five-year- old J.L. and Rawlings's two other children in a two-story house. Absher sometimes visited the children at the house. On May 26, 2004, Absher came to Rawlings's house to visit and spent the night. Absher, Rawlings, and the children slept in the same bedroom, with Absher and Rawlings sleeping on the floor, and the children sleeping on the bed. Trial Tr. Vol. 1 at 54.

[¶3] The following morning, Absher and Rawlings woke up and went downstairs to the kitchen. Absher offered to go back upstairs, wake up J.L., and change the youngest child's diaper. After Absher had been gone about fifteen minutes, Rawlings decided to go upstairs because she thought it was taking too long to change a diaper. Id. at 60-61. When she got upstairs, she looked into the bedroom through the open door and saw J.L. lying on her back on the floor with her underwear pulled down and her legs apart. Id. at 63. Absher was on his knees straddling J.L. Id. at 64. His jeans and underwear were pulled down below his knees. Id. at 64-65. His right hand was holding his penis, and his left hand was on J.L.'s lower abdomen, with his fingers toward her stomach and his thumb touching her "vagina area." Id. at 66. Rawlings yelled at Absher and pushed him away. Absher asked her not to call the police and promised it would not happen again. Id. at 55. Rawlings said that that was "not good enough" and called the police. Id. When the police arrived, Absher fled.

[¶4] New Albany Police Department Sergeant Sherri Knight interviewed J.L. The audiotape of the interview was admitted at trial without objection. J.L. told Sergeant Knight that Absher touched the inside of her "coochie[, ]" J.L.'s term for her sex organ, with his "weenie." Trial Confidential Ex. Vol. 1 at 51-52; Trial Tr. Vol. 1 at 227-28. J.L. said that when Absher put his weenie in her coochie, it "felt bad." Trial Confidential Ex. Vol. 1 at 52; Trial Tr. Vol. 1 at 229-30. Sergeant Knight asked J.L. whether Absher's weenie touched any other part of J.L.'s body, and she said no. Trial Confidential Ex. Vol. 1 at 52; Trial Tr. Vol. 1 at 230. Sergeant Knight also asked J.L. whether any other part of Absher's body touched her coochie, and she said no. Trial Confidential Ex. Vol. 1 at 52; Trial Tr. Vol. 1 at 230. Finally, Sergeant Knight asked J.L. if anyone else had ever touched her coochie, and she said no. Trial Confidential Ex. Vol. 1 at 54; Trial Tr. Vol. 1 at 230.

[¶5] After her interview with Sergeant Knight, J.L. was examined by sexual assault nurse examiner Kathy Scifres. J.L. explained to Scifres that Absher touched her with his weenie two times, pointing to her "genitalia area" to indicate where Absher had touched her. Trial Tr. Vol. 1 at 110-11. During Scifres' examination of J.L., Scifres discovered a three-millimeter vertical abrasion "oozing a little bit of fluid" and another horizontal abrasion in the labial area, both of which were recent. Id. at 118-19. Scifres took swabs of J.L.'s genitals and collected her clothing as evidence.

[¶6] Police located Absher, and Sergeant Knight interviewed him. His interview was recorded and admitted at trial without objection, and a transcription of the recording was admitted as Defendant's Exhibit 4. Absher told Sergeant Knight that after he woke J.L. up that morning, he tickled her around her belly button under her shirt. Trial Confidential. Ex. Vol. 1 at 60. He admitted that he touched J.L.'s private area with his hand but claimed that it was unintentional. Id. at 64-65. When Sergeant Knight told him that J.L. said that he touched her private area with his penis, Absher stated that he did not remember that happening, but he guessed that J.L. was telling the truth. Id. at 65. During a portion of their conversation that was not recorded, Absher told Sergeant Knight many times that "if [J.L.] said I did it than [sic] I did it[.]" Trial Tr. Vol. 2 at 279.

[¶7] On May 28, 2004, the State charged Absher with one count of class A felony child molesting, alleging that Absher, "a person of at least twenty-one years of age, did perform sexual intercourse with [J.L.], a child under the age of fourteen, to wit: 5." Direct Appeal App. Vol. 1 at 26.

[¶8] At the initial hearing, the trial court set the omnibus date for July 27, 2004. Trial was originally scheduled for August 9, 2004, but following numerous continuances, it was rescheduled for June 12, 2006. On June 9, 2006, the State filed a motion to amend the charging information to designate the original class A felony child molesting count as Count 1 and add two new counts. In Count 2, the State charged Absher with class A felony child molesting, alleging that he performed deviate sexual conduct with J.L. by placing his mouth on her sex organ. Id. at 114. In Count 3, the State charged Absher with class C felony child molesting, alleging that he fondled or touched J.L. with the intent to arouse or satisfy his sexual desires. Id. Absher did not object to the motion to amend. On the same date, the State made a plea offer to Absher. On June 13, 2006, Absher refused the State's plea offer, and the trial court granted the State's motion to amend. The trial court also granted Absher's request for a continuance. Trial commenced on August 15, 2006. On August 18, 2006, the jury found Absher guilty as charged. On September 18, 2006, the trial court sentenced Absher to an executed term of fifty years each on Counts 1 and 2, to be served consecutive to each other, and eight years on Count 3, to be served concurrent with Count 1.

[¶9] Absher brought a direct appeal of his convictions, arguing that the trial court erroneously allowed the State to amend its charging information to add Counts 2 and 3 after the expiration of the time limit set forth in Indiana Code Section 35-34-1-5. Absher v. State, 866 N.E.2d 350 (Ind.Ct.App. 2007) (Absher I). In summary, the Absher I court held that the trial court erred by granting the State's motion to amend. Id. at 354. However, because Absher's trial counsel failed to preserve the error for appellate review with a timely objection, Absher was required to establish fundamental error. Id. at 354-55. The Absher I court concluded that Absher failed to provide cogent argument with citation to authority to support his legal conclusion that the error was fundamental and affirmed his convictions.2 Id. at 356.

[¶10] In October 2013, Absher, pro se, filed a PCR petition, which, after two amendments by counsel, took its final form in December 2017. In June 2018, Judge J. Terrence Cody held an evidentiary hearing on Absher's PCR petition, at which Absher's trial counsel William Eastridge and Lisa Glickfield and his appellate counsel J. Patrick Biggs testified. In September 2018, the parties filed proposed findings of fact and conclusions of law. In December 2019, Absher filed a request for a ruling. In January 2020, Absher filed a praecipe for withdrawal of submission pursuant to Indiana Trial Rules 53.1(E) and 53.2(E). In February 2020, the Indiana Supreme Court entered an order withdrawing the matter from Judge Cody and appointing Maria D. Granger as special judge. On June 3, 2020, Special Judge Granger issued an order denying Absher's PCR petition. This appeal ensued.

Discussion and Decision

[¶11] "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...

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