Joseph Rushing v. State of Indiana ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Dec 31 2012, 11:18 am
establishing the defense of res judicata,
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APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
JOSEPH RUSHING GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSEPH RUSHING, )
)
Appellant-Defendant, )
)
vs. ) No. 27A02-1201-PC-91
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GRANT SUPERIOR COURT
The Honorable Dana J. Kenworthy, Judge Pro Tempore
Cause Nos. 27D02-0409-FA-121, 27D02-1110-PC-295
December 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Joseph Rushing, pro se, appeals the post-conviction court’s denial of his petition
for post-conviction relief. Rushing raises one issue which we revise and restate as
whether Rushing was denied the effective assistance of appellate counsel.1 We affirm.
The relevant facts as discussed in Rushing’s direct appeal follow:
On the afternoon of July 2, 2004, R.B. (“Mother”) went to Rushing’s
house with her boyfriend, Derek Rushing (“Derek”), her two daughters,
L.B. and A.B., and her young cousin. Mother, Derek and Rushing
consumed beers and smoked marijuana while the children were playing. In
Rushing’s house there were three bedrooms in a row on the ground floor.
The children fell asleep in the middle bedroom. Rushing then led Mother
and Derek to his bedroom at the back of the house for them to sleep there
for the night.
After Rushing left the back bedroom, Mother sat on the bed for a
moment. She then went to check on the girls, who were still sleeping in the
middle bedroom. L.B. was no longer in the middle room, so Mother went
to look for her. She found L.B. on the floor in the room where Rushing
was supposed to be sleeping with her legs spread apart and Rushing’s head
in her crotch. Mother testified she heard “licking sounds” and saw
Rushing’s tongue touch L.B.’s vagina.
Rushing v. State, No. 27A02-0602-CR-75, slip op. at 2 (Ind. Ct. App. September 6,
2006).
On September 21, 2004, the State charged Rushing with six counts of child
molesting, four as class A felonies and two as class C felonies. Id. The alleged victims
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In his statement of issues, Rushing raises the issue of whether the post-conviction court failed to
issue findings of fact and conclusions of law. However, he does not address this issue in the argument
section of his brief. Also, at one point in the argument section, Rushing states that he “can prove that his
trial counsel was ineffective,” but the basis of his argument and the heading of his argument section focus
on the assistance of his appellate counsel, and Rushing does not develop any argument related to his trial
counsel. Consequently, Rushing has waived these issues. See Smith v. State, 822 N.E.2d 193, 202-203
(Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where the party fails to
develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans.
denied; Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on
the issues presented, supported by cogent reasoning. Each contention must be supported by citations to
the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with
Rule 22.”).
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were L.B., age 4, and A.B., age 3. Id. On July 7, 2005, the State filed Count VII, an
habitual offender enhancement. Id. At a hearing on September 26, 2005, the State
conceded that the two alleged victims would not be competent witnesses at trial. Id. at 2-
3. Therefore, the State dismissed all but Count I. Id. at 3.
A jury found Rushing guilty of child molesting as a class A felony, and the court
sentenced Rushing to fifty years. Id. On direct appeal, Rushing argued that there was
insufficient evidence presented at trial to support his conviction. Id. Specifically,
Rushing argued that the rule of incredible dubiosity applied because Mother’s testimony
was inherently implausible because the acts she described could not have been performed
in a matter of seconds as she had testified. Id. at 3-4. This court concluded that the
evidence presented was not so incredibly dubious or inherently improbable that no
reasonable person could believe it and affirmed Rushing’s conviction. Id. at 4-5.
On June 17, 2010, Rushing filed a pro se petition for post-conviction relief
alleging that he received ineffective assistance of trial counsel on numerous grounds. On
September 26, 2011, Rushing filed an amended pro se petition for post-conviction relief
and alleged that his appellate counsel was ineffective in submitting the issue of
insufficient evidence on direct appeal because “it is clear that Rushing never committed
the act of penetration to be convicted of a class A felony.” Appellant’s Appendix at 26.
On January 9, 2012, the court held a hearing on Rushing’s petition. Rushing
questioned his appellate counsel with respect to whether there was evidence of
penetration at trial. During questioning, Rushing’s appellate counsel stated:
You seem, your questions seem to be asking me to confirm whether there
was no evidence of penetration. And I won’t dispute that. But, what I am
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saying there is more than one (1) way under the statute the State can prove
or attempt to prove the Class A Child Molesting. . . . [T]he fact that [the
State] did not prove penetration is . . . not sufficient to disprove their case.
Because they were proceeding under another area of that statute.
Transcript at 8-9.
That same day, the court denied Rushing’s petition for post-conviction relief.
Specifically, the court’s order stated:
Having heard the evidence and arguments, the Court now makes the
following findings and order:
1. [Rushing] called only one witness, his trial counsel Craig Persinger,
in support of his Petition. Attorney Persinger testified that
[Rushing’s] claimed basis for his Petition was based upon
[Rushing’s] misunderstanding of the child molesting statute.
Attorney Persinger further indicated that a State’s witness testified at
trial that she observed [Rushing] licking the private parts of the
victim. Persinger challenged the veracity and reliability of this
witness at trial, but he [sic] jury apparently found her to be credible
and convicted [Rushing] of Class A Felony child molesting.
Persinger testified that [Rushing’s] arguments were also argued, and
rejected, on appeal.
2. [Rushing] essentially argues that the evidence at trial supports only a
Class C Felony child molesting charge, and not a Class A Felony
child molesting charge. However, this argument is based upon
[Rushing’s] misunderstanding of the law, and as such is not a valid
basis for post-conviction relief. Further, the evidence presented at
trial was sufficient to support the jury’s finding of guilt of the Class
A Felony child molesting charge.
3. [Rushing] presented no evidence to support his other claims as stated
in his Petition for Post-Conviction Relief.
Appellant’s Appendix at 29.
Before discussing Rushing’s allegations of error, we note that although Rushing is
proceeding pro se, such litigants are held to the same standard as trained counsel and are
required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.
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2004), trans. denied. We also note the general standard under which we review a post-
conviction court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind.
Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative judgment. Fisher, 810
N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. Further, the post-conviction court in this case entered findings
of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6).
Id. “A post-conviction court’s findings and judgment will be reversed only upon a
showing of clear error – that which leaves us with a definite and firm conviction that a
mistake has been made.” Id. In this review, we accept findings of fact unless clearly
erroneous, but we accord no deference to conclusions of law. Id. The post-conviction
court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.
The issue is whether Rushing was denied the effective assistance of appellate
counsel. When evaluating an ineffective assistance of counsel claim, we apply the two-
part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). Ineffective assistance of
appellate counsel claims fall into three categories: (1) denial of access to an appeal; (2)
waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690 N.E.2d 188,
193-95 (Ind. 1997) (citing Lissa Griffin, The Right to Effective Assistance of Appellate
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Counsel, 97 W. VA. L. REV. 1, 21-22 (1994)), reh’g denied, cert. denied, 525 U.S. 1021,
119 S. Ct. 550 (1998). Rushing raises a claim under the second category.
To prevail on a claim about appellate counsel’s failure to raise an issue, the first
prong of the Strickland test requires Rushing to show from the information available in
the trial record or otherwise known to appellate counsel that appellate counsel failed to
present a significant and obvious issue and that this failure cannot be explained by any
reasonable strategy. Carter v. State, 929 N.E.2d 1276, 1278 (Ind. 2010). We “consider
the totality of an attorney’s performance to determine whether the client received
constitutionally adequate assistance.” Bieghler, 690 N.E.2d at 194.
In Bieghler, the Court approved the two-part test used by the Seventh Circuit to
evaluate these claims: (1) whether the unraised issues are significant and obvious from
the face of the record; and (2) whether the unraised issues are “clearly stronger” than the
raised issues. Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). The
Indiana Supreme Court has also said that “to prevail on a claim of ineffective assistance
of appellate counsel, ‘a defendant must show from the information available in the trial
record or otherwise known to appellate counsel that appellate counsel failed to present a
significant and obvious issue and that this failure cannot be explained by any reasonable
strategy.’” Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001) (quoting Ben-Yisrayl v.
State, 738 N.E.2d 253, 260-261 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1164,
122 S. Ct. 1178 (2002)), reh’g denied, cert. denied, 537 U.S. 839, 123 S. Ct. 162 (2002).
Rushing argues that “[i]f counsel would have did [sic] his research and
investigation, talk with [him] prior to raising the sole issue of insufficient evidence,
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counsel would have discovered that the issue of insufficient evidence would and could
have been based on [him] being convicted upon a crime that did not occur, that being a
class A felony.” Appellant’s Brief at 3. Rushing appears to argue that penetration of the
female sex organ was required in order to convict him of child molesting as a class A
felony.
The State argues that Rushing did not establish that his appellate counsel failed to
raise a stronger claim than his proffered claim. The State also argues that child molesting
as a class A felony can be proven by either sexual intercourse or acts of deviate sexual
conduct. The State is correct.
At the time of the offense, the statute governing child molesting provided:
(a) A person who, with a child under fourteen (14) years of age,
performs or submits to sexual intercourse or deviate sexual conduct
commits child molesting, a Class B felony. However, the offense is
a Class A felony if:
(1) it is committed by a person at least twenty-one (21)
years of age;
(2) it is committed by using or threatening the use of
deadly force or while armed with a deadly weapon;
(3) it results in serious bodily injury; or
(4) the commission of the offense is facilitated by
furnishing the victim, without the victim’s knowledge,
with a drug (as defined in IC 16-42-19-2(1)) or a
controlled substance (as defined in IC 35-48-1-9) or
knowing that the victim was furnished with the drug or
controlled substance without the victim’s knowledge.
Ind. Code § 35-42-4-3 (2004) (subsequently amended by Pub. L. No. 216-2007, § 42, eff.
July 1, 2012). Deviate sexual conduct was defined as “an act involving: (1) a sex organ
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of one person and the mouth or anus of another person; or (2) the penetration of the sex
organ or anus of a person by an object.” Ind. Code § 35-41-1-9 (2004) (repealed by Pub.
L. No. 114-2012, §§ 87 to 102, eff. July 1, 2012).
The relevant statutes provide that as long as certain other requirements are met,
which Rushing does not challenge, a conviction for child molesting as a class A felony
can be supported by either sexual intercourse or an act involving the sex organ of one
person and the mouth of another person, which applies to the present case. 2 See also
Settle v. State, 526 N.E.2d 974, 976 (Ind. 1988) (holding that cunnilingus fits the
statutory definition of deviate sexual conduct); Broude v. State, 956 N.E.2d 130, 135
(Ind. Ct. App. 2011) (holding that the State presented sufficient evidence that the
defendant committed child molesting as a class A felony where the defendant forced the
victim to perform oral sex on him), trans. denied. Because Rushing has not demonstrated
that this issue was significant and obvious from the face of the record or that the unraised
issue was clearly stronger than the raised issue, we cannot say that the post-conviction
court erred. See Walker v. State, 843 N.E.2d 50, 60 (Ind. Ct. App. 2006) (holding that
the post-conviction court’s denial of defendant’s claim of ineffective assistance of
appellate counsel was not clearly erroneous), reh’g denied, trans. denied, cert. denied,
549 U.S. 1130, 127 S. Ct. 967 (2007).
2
Rushing cites to Spurlock v. State, which held that “[a]lthough a touching is sufficient to
support child molesting as a Class C felony . . . evidence of a touching without more does not support a
conviction for child molesting as a Class A felony, which requires ‘penetration of the female sex organ.’”
675 N.E.2d 312, 315 (Ind. 1996) (quoting Ind. Code § 35-42-4-3(a)). The State argues that Spurlock is
not applicable because the State proceeded in the present case under a different provision of the
molestation statute. We agree with the State. In Spurlock, the charging information alleged that the
defendant performed or submitted to sexual intercourse. 675 N.E.2d at 314 n.1.
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For the foregoing reasons, we affirm the post-conviction court’s denial of
Rushing’s petition for post-conviction relief.
Affirmed.
BAILEY, J., and VAIDIK, J., concur.
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