Hinesley v. State

• Decision Date: 19 December 2013
• Docket Number: No. 55A05–1302–PC–80.,55A05–1302–PC–80.
• Parties: William HINESLEY, III, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

999 N.E.2d 975

William HINESLEY, III, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 55A05–1302–PC–80.

Court of Appeals of Indiana.

Dec. 19, 2013.

Rehearing Denied Feb. 20, 2014.

F. Thomas Schornhorst, Oxford, MS, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary¹

Following a bench trial, William Hinesley, III, was convicted of class A felony child molesting. After this Court affirmed his conviction on direct appeal, Hinesley filed a petition for post-conviction relief claiming that he was denied the effective assistance of trial counsel due to his counsel's deliberate strategic choice to permit the trier of fact to consider as substantive evidence hearsay statements attributed to the State's primary witnesses. Hinesley also claimed ineffective assistance due to his counsel's failure to object to improper vouching and uncharged misconduct testimony, and his counsel's failure to introduce a medical report into evidence at trial. In addition, Hinesley raised a freestanding claim of fundamental error due to alleged prosecutorial misconduct based upon the prosecutor's knowing introduction of the alleged inadmissible hearsay, vouching, and uncharged misconduct evidence. The postconviction court denied relief, and Hinesley now appeals. Concluding that the postconviction court properly determined that Hinesley failed to demonstrate that his counsel's performance was deficient or prejudicial, and further concluding that his claim of prosecutorial misconduct is unavailable, we affirm.

Facts and Procedural History

On direct appeal, another panel of this Court recited the facts underlying Hinesley's conviction as follows:

On the night of January 16, 2009, the Hinesley family was at home in Paragon, Indiana. Hinesley, his son William J. Hinesley, IV (“Billy”), who was twenty years old at the time, a foster daughter, V.V., who was thirteen years old at the time, and others were present. Eventually, Hinesley and V.V. were the only ones awake. They sat on a couch in the living room and talked as they watched a movie. Next, Hinesley got up and went into the kitchen. When he returned, he approached V.V. and pulled down her pants and underwear. Hinesley got on top of V.V. and put his penis in her vagina. After a short period of time, V.V. tried to push Hinesley away, and he got up and left the room. V.V. got up and pulled up her pants.

Meanwhile, Billy was going to the kitchen to get a glass of water. He encountered V.V., who told him that she had just had sex with Hinesley. Billy sent V.V. to the master bedroom while he woke his sister, S.H., and had her go into the master bedroom with him and V.V. In the morning, Billy contacted his uncle, who was a police officer in Mooresville, Indiana, and the local police were contacted.

Hinesley v. State, No. 55A04–1102–CR–90, slip op. at 1, 2011 WL 5117056 (Ind.Ct.App. Oct. 27, 2011). The State charged Hinesley with two counts of class A felony child molesting and two counts of class C felony child molesting. Prior to trial, the State dismissed one of the class C felony counts.

A bench trial was held on December 1, 2010. The State's first witness was Detective Dan Downing of the Morgan County Sheriff's Department, the chief investigating officer in Hinesley's case. During his testimony, Detective Downing summarized unsworn statements that he had taken from V.V. and Billy during interviews on the morning of January 17, 2009. Detective Downing testified that Billy stated that he had left V.V. and Hinesley alone in the living room and later came down the hallway and observed V.V. jump off the couch and pull her pants up from around her ankle area. Trial Tr. at 17. Detective Downing testified that Billy stated that he spoke with V.V. and asked her if he had seen what he thought he saw and that V.V. had replied “yes.” Id. at 18. Defense counsel did not object to Detective Downing's testimony regarding Billy's statement. A video recording of Billy's interview was also entered into evidence without objection. In that recording, Billy stated, “I guess I asked her did he touch you in some spot. She said yes. And she told me that he had entered her.” Id. at 21, State's Ex. 2.

Detective Downing then testified regarding V.V.'s interview. Detective Downing described V.V.'s demeanor as “[r]elatively childlike[,] she was very protected, very guarded. She acted much younger ... than her physical age.” Id. at 23. He opined, “she seemed very believable. I didn't see any reason not to believe her statements, especially due to the fact they were corroborated ... by Billy.” Id. Detective Downing testified that V.V. stated that she was resting her head in Hinesley's lap when Hinesley left to go into the kitchen to get something. Detective Downing testified that V.V. stated that, when Hinesley came back, he began rubbing her breast, buttock, and vaginal area. Detective Downing recalled,

she then stated that he made penetration of her vaginal area. She couldn't tell me how long that went on or really give me any details about that.

At that point in time she stated that Mr. Hinesley told her to pull her pants down, at which point in time he inserted ... his penis into her vagina.

Id. at 25. When asked by the prosecutor, “What caused the intercourse to stop? Did she indicate?” Detective Downing responded, “She said ... that they heard a noise and Mr. Hinesley got up off the top of her. At that point in time she seen Billy in the kitchen.” Id. at 27.

Thereafter, V.V. was called as a witness by the State. She testified that she was resting her head on Hinesley's lap watching a movie when he got up to go to the kitchen. When he returned, he pulled her pajama bottoms and panties down to her ankles. V.V. testified that Hinesley climbed on top of her and entered her vagina with his penis. She stated that she was stunned at first and started saying, “I want to go to bed.” Id. at 117. V.V. stated that she pushed Hinesley off her. V.V. testified that she then saw Billy walking down the hall. Billy asked her if he “had seen what he just seen,” and she replied, “yes.” Id. at 118. V.V. testified that she used slang words to describe the intercourse to Billy by stating that Hinesley had put his “tweeter” into her “down there.” Id. at 120. On cross-examination, V.V. admitted that, in a pretrial deposition, she said that she “forgot” or “wasn't sure” if Hinesley had penetrated her with his penis. Id. at 125, 143–45. V.V. testified that she was lying when she gave that deposition testimony.

Next, the State called Billy as a witness. Billy testified that V.V. told him that she had sex with his father but that “[a]t this point in time I do not remember what I saw.” Id. at 170. The prosecutor reminded Billy about his statement to Detective Downing and asked Billy if he remembered telling Detective Downing that he actually saw V.V. pulling her pants up. Billy indicated that he remembered saying the words “I think I saw” to Detective Downing but claimed to now only recall what V.V. told him had happened and not what he saw. Id. at 174. Defense counsel cross-examined Billy by pointing out that Billy and V.V. were in a sexual relationship at the time of the incident and that Billy repeatedly lied about and denied the relationship during police interviews. Billy admitted that he was afraid of getting caught in his sexual relationship with V.V. because he knew that he could be charged criminally due to her age. Billy stated that he lied to Detective Downing about his relationship with V.V. and that he “could have” lied when he told Detective Downing that he actually saw anything occur between his father and V.V. Id. at 178. Billy agreed that “there's a good chance that [he] didn't see anything at all.” Id. Billy claimed on cross-examination that he learned after his initial interview with Detective Downing that V.V. was pregnant with his baby at the time of the alleged molestation.²

At the close of the State's case-in-chief, defense counsel moved for an involuntary dismissal of counts II and III, one class A felony child molesting count alleging deviate sexual conduct and the class C felony child molesting count alleging touching or fondling with intent to arouse, due to the lack of evidence presented by the State. The trial court granted the motion and dismissed counts II and III, and the trial proceeded as to count I, class A felony child molesting alleging sexual intercourse. At the conclusion of the trial, the court found Hinesley guilty of one count of class A felony child molesting. The trial court imposed a sentence of thirty years with five years suspended. This Court affirmed Hinesley's conviction on direct appeal. See Hinesley, slip op. at 3. On May 16, 2012, Hinesley filed a petition for post-conviction relief. The post-conviction court held an evidentiary hearing on October 25 and November 16, 2012. Thereafter, on February 12, 2013, the post-conviction court issued its findings of fact, conclusions of law, and judgment denying post-conviction relief. This appeal followed.

Discussion and Decision

Standard of Review

In Wilkes v. State, 984 N.E.2d 1236 (Ind.2013), our supreme court reiterated the appellate standard of review regarding post-conviction proceedings. Specifically, the court stated,

Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Postconviction proceedings do not offer a super appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Those grounds are limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Claims of ineffective

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