Kien v. State

• Decision Date: 17 May 2007
• Docket Number: No. 20A03-0608-PC-392.,20A03-0608-PC-392.
• Citation: 866 N.E.2d 377
• Parties: Paul KIEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

866 N.E.2d 377

Paul KIEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 20A03-0608-PC-392.

Court of Appeals of Indiana.

May 17, 2007.

J. Richard Kiefer, James J. Bell, Bingham McHale LLP, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Following his three convictions for molesting his former girlfriend's five-year-old daughter, Paul Kien appeals the post-conviction court's denial of his petition for post-conviction relief. Specifically, Kien contends that his trial counsel was ineffective for failing to investigate and present evidence that he was not the one who molested the victim and for failing to challenge the victim's competency. Because the evidence that Kien claims shows that he did not molest the victim is inadmissible, trial counsel cannot be deemed ineffective for failing to investigate and present it. In addition, because there is no evidence that the victim was incompetent, trial counsel was not ineffective for failing to challenge her competency. We therefore affirm the post-conviction court.

Facts and Procedural History

The facts underlying this appeal, taken from this Court's 2003 opinion in Kien's direct appeal, are as follows:

The incidents which led to the charges and the subsequent convictions arose out of allegations made by five-year-old J.F., the daughter of Kien's former live-in girlfriend[, Shellie Devlin]. During an interview conducted by Lori Harrington at the Elkhart Child and Family Advocacy Center, which was attended by Detective Terry [S]hmiel of the Elkhart Police Department, J.F. alleged that Kien had put his penis and tongue on her vagina "a lot." J.F. stated that these incidents occurred either in her mother's bedroom or by the basement door. J.F. also stated that during one incident, Kien put his penis in her vagina and that it hurt. On another occasion, she stated, Kien had forced her to suck his penis. J.F.'s [half-]brother, B.D., also stated that he witnessed one episode of molestation between J.F. and Kien.

J.F. was examined by a physician, Lynette Valentijn, who found that J.F.'s hymen had been "disrupted," or rather, was no longer intact. She also noted that there was increased vascularity to the posterior fourchette, the area beneath the hymen, which indicated that there had been a trauma which required more blood flow to aid in the healing process. A white mark was also present in the area, which could have been a scar from a cut.

Dr. Valentijn testified that all of these conditions were abnormal and were not the types of injuries which could have been caused by such things as a fall on a bicycle seat. According to Dr. Valentijn, these findings were all consistent with sexual abuse with penetration.

On June 5, 2000, Kien was charged with one count of Child Molesting [as a Class A felony], alleging sexual intercourse. On November 3, 2000, two additional counts of Child Molesting [as Class A felonies] were added. On January 23, 2001, the counts which were added on November 3 were amended to reflect that the second count alleged sexual intercourse and the third count alleged deviate sexual conduct by fellatio.

Kien v. State, 782 N.E.2d 398, 403-04 (Ind. Ct.App.2003), reh'g denied, trans. denied.

At his January 2001 jury trial, Kien's theory of defense was that Shellie Devlin ("Shellie"), J.F.'s mother and his former girlfriend, sought revenge against him, when he ended their relationship for the final time and moved out of the house on April 1, 1999, by taking out a credit card in his name. Then, when Kien reported the crime to the police, Shellie concocted a scheme to divert attention from the credit card investigation by accusing Kien of molesting her daughter, J.F., and in the process brought her children in on the scheme. Kien explained that every time he moved out of the house, "something revengeful would happen to [him]." Appellant's App. p. 212. The jury found Kien guilty of the three counts of Class A felony child molesting, and the trial court sentenced him to forty years for each count, to be served consecutively, for an aggregate term of 120 years.

On direct appeal, Kien raised several issues before this Court: (1) whether his constitutional rights were violated by the manner in which objections and arguments were made at the bench so that they could not be recorded; (2) whether the evidence is sufficient to support his convictions; (3) whether two suicide notes were improperly admitted for impeachment purposes; (4) whether the jury should have been instructed on a mens rea element for child molesting; (5) whether the trial court relied upon improper aggravating and mitigating circumstances in sentencing; and (6) whether his sentence is inappropriate. We affirmed Kien's convictions but remanded the case for his sentence to be reduced:

Because the evidence did not necessarily establish that the acts occurred at significantly different times with Kien having time to reflect upon the heinous nature of the crimes committed, ordering that Kien serve consecutive sentences for the two convictions for child molesting by sexual intercourse is inappropriate . . . . The trial court is ordered to amend Kien's sentencing order to reflect that the sentences for Counts I and II, the convictions for child molesting by sexual intercourse, be served concurrently. The sentence is affirmed in all other respects.

Kien, 782 N.E.2d at 416-17. As a result, the trial court reduced Kien's sentence to eighty years. The Indiana Supreme Court denied Kien's petition to transfer.

In November 2004, Kien filed a petition for post-conviction relief, which has since been amended several times. A hearing on Kien's petition was held in April 2006, and the post-conviction court entered extensive findings of fact and conclusions thereon in August 2006 denying relief. Kien now appeals.

Discussion and Decision

A defendant who has exhausted the direct appeal process may challenge the correctness of his convictions and sentence by filing a post-conviction petition. Carew v. State, 817 N.E.2d 281, 285 (Ind. Ct.App.2004), trans. denied. Post-conviction procedures do not provide an opportunity for a "super-appeal"; rather, they create a narrow remedy for subsequent collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules. Id.; see also Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). Post-conviction proceedings are civil proceedings, so a defendant must establish his claims by a preponderance of the evidence. Carew, 817 N.E.2d at 285.

A petitioner who appeals the denial of post-conviction relief faces a rigorous standard of review. Benefiel v. State, 716 N.E.2d 906, 911 (Ind.1999), reh'g denied. The reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. Hall v. State, 849 N.E.2d 466, 468 (Ind.2006). Furthermore, while we do not defer to the post-conviction court's legal conclusions, we accept its factual findings unless they are clearly erroneous. Carew, 817 N.E.2d at 285. To prevail on appeal, the petitioner must establish that the evidence is uncontradicted and leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Hall, 849 N.E.2d at 469.

Kien raises several issues on appeal, only one of which we need to address. That is, Kien contends that his trial counsel was ineffective for three reasons: (1) failing to investigate and present additional evidence of Shellie's vindictive behavior; (2) failing to challenge J.F.'s competency; and (3) failing to investigate and present evidence that J.F.'s half-brother could have molested her.¹

We review claims of ineffective assistance of trial counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Carew, 817 N.E.2d at 285-86. First, the petitioner must demonstrate that counsel's performance was deficient because it fell below an objective standard of reasonableness and denied the petitioner the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Smith v. State, 765 N.E.2d 578, 585 (Ind.2002), reh'g denied. Second, the petitioner must demonstrate that he was prejudiced by his counsel's deficient performance. Wentz v. State, 766 N.E.2d 351, 360 (Ind.2002), reh'g denied. To demonstrate prejudice, a petitioner must demonstrate a reasonable probability that the result of the proceeding would have been different if his counsel had not made the errors. Id. A probability is reasonable if our confidence in the outcome has been undermined. Id.

I. Failure to Investigate and Present Additional Evidence of Shellie's Vindictive Behavior

Kien first argues that his trial counsel was ineffective for failing to investigate and present additional evidence of Shellie's vindictive behavior, which would have bolstered his defense theory that Shellie, in conjunction with her children, fabricated the child molesting allegations against him.² At the post-conviction hearing Kien presented this additional evidence, which the post-conviction court summarized as follows:

Evidence was presented at the [post-conviction] hearing ... that the victim's mother threatened former lovers with vindictive acts following breakdowns in her relationships with them. Specifically, Jack Daryl Devlin, Sr. ("Jack, Sr."), [Shellie's ex-husband,] said Shellie threatened to accuse him of abusing the children if he stopped supporting her. Jack, Sr. also testified that Shellie applied for three or four credit cards in his name without his permission and, that he did not discover that fact until he received delinquent notices and statements. In addition, Richard Lewis Wheeler testified that he was involved in a relationship with Shellie...