McCullough v. State

• Decision Date: 27 August 2012
• Docket Number: No. 49A02–1106–PC–571.,49A02–1106–PC–571.
• Citation: 973 N.E.2d 62
• Parties: Ian McCULLOUGH, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

973 N.E.2d 62

Ian McCULLOUGH, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 49A02–1106–PC–571.

Court of Appeals of Indiana.

Aug. 27, 2012.

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

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary and Issue

Ian McCullough was convicted of two counts of class A felony child molesting and one count of class C felony child molesting. His convictions were affirmed on direct appeal, and he then sought post-conviction relief (“PCR”), arguing that he received ineffective assistance of trial counsel. The post-conviction court denied McCullough's PCR petition.

On appeal, McCullough argues that his trial counsel was ineffective (1) in offering and failing to object to evidence of prior uncharged misconduct and failing to object to the prosecutor's references to that misconduct; (2) in failing to adequately cross-examine the State's investigators; (3) in failing to make an offer of proof when the trial court excluded his expert's testimony; (4) in failing to present expert evidence of child memory; (5) in failing to present certain evidence; and (6) in failing to tender or request the jury instruction mandated by the Protected Person Statute. We conclude that McCullough has failed to carry his burden to show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Therefore, we affirm the post-conviction court's judgment.¹

Facts and Procedural History

The facts underlying McCullough's convictions were set forth in the memorandum decision issued on direct appeal as follows:

L.D. (DOB 1/22/98) is the daughter of Sarah Calvert and Jason Dees. When L.D. was approximately one year old, [Sarah] began dating McCullough, and eventually moved in with him. During the next few years, the couple had two children together, E.M. (DOB 5/14/2000) and M.M. (DOB 6/4/2002). However, in 2003 or 2004, the couple separated. Thereafter, L.D. lived with her mother, [Sarah], in Greenfield, while E.M. and M.M. lived with their father, McCullough, in Indianapolis. On weekends, L.D. would visit with McCullough, whom she referred to as “daddy,” and her half-sisters. When she stayed overnight at McCullough's home, L.D. slept in bed with him or in a different room with E.M. and M.M.

At some time before L.D. entered pre-school, McCullough touched her vagina with his fingers. McCullough touched L.D. inappropriately more than once over the next few years. Twice he touched her vagina with his tongue while they were in his bed at his home. Another time, McCullough touched L.D.'s vagina with his finger while she sat in the seat next to him in his vehicle. In the fall [of] 2005, McCullough inserted his finger in L.D.'s vagina. McCullough referred to his actions as a “tickle” and instructed L.D. not to tell anyone lest he get in trouble.

In early December 2005, Judy Calvert (“Judy”), L.D.'s maternal grandmother, with whom she was living at the time, said that L.D. would be visiting with McCullough for the weekend. L.D. became upset, and questioned if she had to go. Moved by L.D.'s tears and pleading, Judy told her she did not have to go but asked why L.D. was reluctant. L.D. replied that she had been masturbating, that she had taught E.M. how to do it, and that she worried that it was wrong. When Judy attempted to assure L.D. that her behavior was not bad per se, L.D. inquired whether it was okay for McCullough to be touching her private parts. Shaking and crying, L.D. confided in her grandmother that McCullough would stop if L.D. asked him to; L.D. made Judy promise not to tell anyone else.

Upon [Sarah's] return home, Judy immediately shared L.D.'s statements with her, and they took L.D. to Riley Children's Hospital that same night. Riley employees and/or [Sarah] reported the allegations to Child Protective Services (“CPS”).

McCullough v. State, No. 49A02–0805–CR–411, slip op. at 2–4, 2009 WL 69360 (Ind.Ct.App. Jan. 13, 2009) (citations omitted).

On February 13, 2006, Diane Bowers, a forensic child interviewer with the Child Advocacy Center, conducted a videotaped interview of L.D. during which L.D. used anatomical drawings and her hands to explain what McCullough did (“the Bowers Interview”). State's Trial Ex. 1. During the interview, L.D. told Bowers about an incident that occurred when she was three years old and lived in California (“the California Claim”). L.D. said that while she was sleeping in bed with Sarah and McCullough, McCullough got on top of her, “his private” touched her “you know what,” and it went inside “a lot.” State's Trial Ex. 2 at 66–69 (transcription of the Bowers Interview). L.D. also stated that she told Sarah that “Daddy's pee was tickling mine,” and that Sarah “just screamed ... you had sex?” at McCullough. Id. at 69. L.D. did not know whether McCullough responded.

Lucita Exom–Pope, an investigator with the Indiana Department of Child Services, was monitoring the interview. Later that day, Exom–Pope interviewed Sarah and asked her about the California Claim. Her report (“the Exom–Pope Report”) states in relevant part as follows:

Sarah was asked when living in California if [L.D.] ever said anything to her about being touched by [McCullough], Sarah stated [L.D.] told her the neighbor's son had touched her while in California. She stated that boy was 6 years old. She also stated [L.D.] was 3 or 4 at the time and was not able to speak clearly. She stated she yelled at the neighbor's father not at [McCullough] about touching [L.D.].

Petitioner's Ex. 4 at 10.

Indiana Police Detective Jan Faber was assigned to investigate L.D.'s allegations. Detective Faber watched the Bowers Interview and interviewed Sarah and Judy.² Detective Faber did not read the Exom–Pope Report. In February 2006, the State charged McCullough with two counts of class A felony child molesting and one count of class C felony child molesting, for offenses that occurred between August 1 and December 3, 2005.

After charging McCullough in the instant case, the State charged McCullough in a separate cause with molesting L.D.'s half-sister, E.M. PCR Tr. at 99. Trial counsel represented McCullough in this cause as well. Id. At some point, E.M. recanted the accusation, and the case was dismissed in December 2007 about a week before the trial in the instant case. Id. at 179–80.

Trial counsel attempted to depose Sarah as part of his preparation for trial but was unable to do so. On January 2, 2007, the trial court ordered the State to contact Sarah and have her contact McCullough's counsel no later than January 9, 2007, to schedule and attend a deposition and that if Sarah failed to do so, her testimony would be excluded. Petitioner's Ex. 2 at 169. Sarah did not contact trial counsel.

The trial court held hearings on August 17 and September 6, 2006, on the admissibility of the Bowers Interview and Judy's hearsay testimony regarding L.D.'s disclosure to her in December 2005. The trial court found both sufficiently reliable to be admitted into evidence.

A jury trial was held on December 17 and 18, 2007. At the outset, McCullough's counsel filed a motion in limine requesting that the trial court enforce its previous order and exclude Sarah's testimony, which the trial court granted. Petitioner's Ex. 2 at 340. Also, the State sought to admit the Bowers Interview, but, in contrast to the recording submitted at the admissibility hearing, L.D.'s comments regarding the California Claim had been redacted. McCullough's counsel objected to the redaction and argued for the entire Bowers Interview to be admitted into evidence. Appellant's App. at 56 (¶ 53); Trial Tr. at 305–09, 317. The State argued that L.D.'s statements pertaining to the California Claim violated Indiana Evidence Rule 412³ and that “[i]t is the right of the victim not to have to testify about those prior incidents of conduct.” Trial Tr. at 311. The trial court stated,

[H]ow in the world does the, the fact that—I'm, I'm just having really a hard time. The victim makes an allegation that when she was three that she had sex with this person. How in the world does that have anything negative, a negative impact on the victim? It strikes me as being incredibly bad for the defendant unless the State's concern is that this is a prior example of a false allegation. And if it is, then it is absolutely relevant.

Id. at 312 (emphasis added). The prosecutor argued that “what we believe the Defense wants to do with this allegation is to bring it in so that they can prove that it's demonstrably false within the context of the trial, which is not appropriate.” Id. at 314–15. The trial court responded,

It strikes me as being extremely prejudicial on behalf, to the defendant, not to the victim whatsoever. And so I'm, I'm just really having a problem there unless the reason why the State doesn't want it there is simply because it gets into the point of previous false allegations, which strikes me as that's the very essence of what these cases are all about.

Id. at 318–19. The trial court ultimately admitted the entire Bowers Interview.

In beginning his opening argument, McCullough's counsel stated,

[L.D.] said the words that the State just recited to you, but those aren't the only words she said. The evidence is going to show you that [L.D.] said a lot of things that just don't make sense. [The] State left out that [L.D.] also claimed when she was three [McCullough] put his penis inside her. A lot of his penis inside her. That she couldn't feel that, that she told her mother, and her mother just quizzically asked, you had sex? And nothing else followed. [L.D.] said that, too.

Id. at 550–51. Trial counsel also argued that the “internal inconsistencies” in L.D.'s statements “don't make sense.” Id. at 551.

During its case-in-chief, the State presented the testimony...