MEMORANDUM DECISION
Jun 11 2015, 9:18 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Tracy A. Nelson Angela N. Sanchez
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary Wilson, June 11, 2015
Appellant-Petitioner, Court of Appeals Cause No.
79A02-1410-PC-694
v. Appeal from the Tippecanoe Circuit
Court
Cause No. 79C01-1004-PC-2
State of Indiana,
Appellee-Respondent. The Honorable Donald Daniel,
Judge
Barnes, Judge.
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Case Summary
[1] Gary Wilson appeals the denial of his petition for post-conviction relief, which
challenged two of his convictions for Class B felony sexual misconduct with a
minor. We affirm.
Issue
[2] The sole issue before us is whether Wilson received ineffective assistance of trial
counsel.
Facts
[3] On July 6, 2005, fourteen-year-old D.W. told her mother that Wilson, her
father, had been committing sexual acts with her. Specifically, D.W. later
testified during trial that Wilson had started fondling her breasts and vagina
about one year before she told her mother. The fondling progressed from
initially being over her clothes to under them. D.W. further testified that, on
the morning of July 6, 2005, Wilson kissed her legs and rubbed her breasts, and
he then pulled aside her shorts and kissed her vagina. D.W. also testified that a
few days before this incident, Wilson had kissed her legs and rubbed her breasts
but had not kissed her vagina; she also stated that no other incidents similar to
these had ever occurred.
[4] After D.W. reported Wilson’s conduct to her mother, her mother contacted
police, and Wilson agreed to a videotaped interview at the police station.
During the interview, Wilson admitted that he had briefly performed oral sex
on D.W. on the morning of July 6, 2005, after first kissing her legs. Wilson also
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stated that he had performed similar acts on D.W., each lasting less than a
minute, on two other occasions in the week and a half prior to July 6. Wilson
denied ever fondling D.W.’s vagina and also stated that he had fondled her
breasts once, about two weeks earlier.
[5] Later, Wilson wrote several letters to his wife and son. Several of the letters
contained general apologies without going into details of what had occurred
with D.W. In the final letter to his wife, Wilson provided more details of what
had occurred and his thought processes:
I was ashamed to admit I had a problem with my own lust. “Pride”
kept me from asking for help or addressing the issue. . . . In my
confusion of mind and my fear of all the time she was spending with
boys I was afraid she would end up pregnant . . . so in some sick way I
thought I’d show her another way to experience pleasure and maybe
she wouldn’t let boys jump on her the other way. . . . If [D.W.]’ll
admit that she tried to hide the truth by saying I came to her room and
fondled her breast “which never happened once” I was at work I’ll
prove that. I only admitted to putting my face in her private area once
and pressing in with my nose and mouth, that she wasn’t unclothed
and it was only a couple of seconds. The other 2 times I just admitted
to kissing her legs and moving up slightly. Which was normal for as
you know I always kissed them both all over and it was never
perverted, but that last time the Medication, my state of trauma (you
know my mind was broke. Jekll & Hide [sic]“) Lust and perversion”
Immorality did get me.
Ex. 12, 13.1 Wilson also stated to his wife:
Get rid of these more serious charges. I can beat her at a jury if you
don’t talk or agree on the extent of the seriousness of these incidents
1
Exhibit 12 was the original handwritten letter, while Exhibit 13 was a photocopy of the letter.
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that it had just happened it hadn’t been going on for some time and
hadn’t escalated to any penetration or sexually deviant crime.
Id.
[6] The State filed a thirteen-count information against Wilson, charging him with
four counts of Class B felony incest, four counts of Class B felony sexual
misconduct with a minor, and five counts of Class C felony sexual misconduct
with a minor. At Wilson’s jury trial, the State introduced without objection his
videotaped police interview. Additionally, the State introduced without
objection the letters Wilson had written to his wife and son. The jury found
Wilson guilty of three counts of incest, three counts of Class B felony sexual
misconduct with a minor, and two counts of Class C felony sexual misconduct
with a minor. The trial court merged the incest convictions with the three Class
B felony sexual misconduct with a minor convictions. These convictions were
related to Wilson having performed oral sex on D.W. The trial court sentenced
Wilson to a total term of sixty years. On direct appeal, we rejected Wilson’s
claim of a violation of Indiana Trial Rule 4(C) and found that his sentence was
not inappropriate. Wilson v. State, No. 79A05-0807-CR-429 (Ind. Ct. App. May
4, 2009), trans. denied.
[7] Wilson subsequently filed a PCR petition, alleging that he had received
ineffective assistance of trial counsel. Specifically, Wilson asserted that trial
counsel should have objected to introduction of his videotaped statement and
his letters to his wife and son because there was insufficient corpus delicti
evidence, independent of his confession, that he committed three acts of Class B
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felony sexual misconduct with a minor via oral sex as opposed to just one act,
as testified to by D.W. at trial. Wilson did not attempt to present any evidence
from his trial attorney, by testimony or affidavit. On this claim, Wilson only
sought to set aside two of his Class B felony sexual misconduct with a minor
convictions. The post-conviction court rejected Wilson’s argument and denied
his PCR petition.2 In part, the post-conviction court held that Wilson’s letters
to his wife and son helped provide corroborating evidence for D.W.’s testimony
that provided a sufficient corpus delicti to allow admission of his videotaped
statement. However, the post-conviction court failed to address Wilson’s
contention that the letters themselves could not provide corroborating evidence
of D.W.’s testimony because they also were out-of-court admissions, just like
the videotaped statement. Wilson now appeals.
Analysis
[8] A post-conviction relief petitioner bears the burden of establishing grounds for
relief by a preponderance of the evidence. Passwater v. State, 989 N.E.2d 766,
770 (Ind. 2013) (citing Ind. Post–Conviction Rule 1(5)). A petitioner appealing
the denial of post-conviction relief is appealing from a negative judgment. Id.
“To prevail from the denial of post-conviction relief, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably to a conclusion
2
Wilson also argued that appellate counsel was ineffective for not arguing that his crimes were subject to
consecutive sentencing limitations. The post-conviction court also rejected this claim, and Wilson does not
raise it on appeal.
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opposite that reached by the post-conviction court.” Id. Additionally, Indiana
Post–Conviction Rule 1(6) requires a post-conviction court to enter findings of
fact and conclusions of law. We do not defer to any legal conclusions made by
the post-conviction court, but we will reverse its findings and judgment only
when there has been clear error—“‘that which leaves us with a definite and firm
conviction that a mistake has been made.’” Id. (quoting Ben–Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000), cert. denied).
[9] A petitioner claiming to have received ineffective assistance of trial counsel in
violation of the Sixth Amendment must establish the two components set forth
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Id. First, a
petitioner must show that counsel’s performance was deficient. Id. “This
requires a showing that counsel’s representation fell below an objective
standard of reasonableness and that counsel made errors so serious that counsel
was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth
Amendment.” Id. Second, a petitioner must show that the deficient
performance prejudiced the defense. Id. This requires a showing that counsel's
errors were so serious as to deprive the petitioner of a fair trial, meaning a trial
whose result is reliable. Id. In order to establish prejudice, it must be shown
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Id. “A reasonable probability is one that is sufficient to
undermine confidence in the outcome.” Id. “We afford counsel considerable
discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render
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representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012)
(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied). If a
claim of ineffective assistance is based upon a failure to object to evidence, “a
defendant must prove that an objection would have been sustained, that the
failure to object was unreasonable, and that he was prejudiced.” Potter v. State,
684 N.E.2d 1127, 1134 (Ind. 1997).
[10] Our supreme court has discussed Indiana’s corpus delicti rule as follows:
In Indiana, a crime may not be proven based solely on a confession,
and admission of a confession requires some independent evidence of
the crime including evidence of the specific kind of injury and evidence
that the injury was caused by criminal conduct. However, this
evidence need not prove that a crime was committed beyond a
reasonable doubt, but merely “provide an inference that a crime was
committed.” Finally, this inference of a crime may be established by
circumstantial evidence.
Workman v. State, 716 N.E.2d 445, 447-48 (Ind. 1999) (citations omitted). In
1990, our supreme court considered arguments for rejecting the corpus delicti
rule but ultimately declined to do so:
The corpus delicti rule arose from judicial hesitancy to accept without
adequate corroboration a defendant's out-of-court confession of
criminal activity. The primary function of the rule is to reduce the risk
of convicting a defendant based on his confession for a crime that did
not occur. Other justifications include the reduction of confessions
produced by coercive tactics and the encouragement of thorough
police investigations. The extent to which the rule actually furthers
these goals has been seriously questioned, especially in light of
developing procedural safeguards for voluntary confessions.
Willoughby v. State, 552 N.E.2d 462, 466 (Ind. 1990) (citations omitted).
Ultimately, the court in Willoughby held:
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We are persuaded that where a defendant confesses to several crimes
of varying severity within a single criminal episode, strict and separate
application of the corpus delicti rule to each offense adds little to the
ultimate reliability of the confession once independent evidence of the
principal crimes is introduced. The confession at that point has been
substantially corroborated. In such a case the confession stands as
direct evidence of each crime, even those not separately corroborated,
if the independent evidence establishes the corpus delicti of the
principal crime or crimes.
Id. at 467.
[11] In Workman, the court further elaborated on what the phrase “single criminal
episode” means within the context of the corpus delicti rule. It looked to
decisions from this court defining “criminal episode” in the context of statutory
consecutive sentencing limitations. Workman, 716 N.E.2d at 448. Specifically,
the court stated, “‘[E]pisode means an occurrence or connected series of
occurrences and developments which may be viewed as distinctive and apart
although part of a larger or more comprehensive series.’” Id. (quoting Tedlock v.
State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995)). “Indiana Code § 35-50-1-2(b)
defines an episode of criminal conduct as ‘a connected series of offenses that are
closely related in time, place, and circumstance.’” Id. In Workman, the court
held that the defendant’s abuse of his wife’s corpse several hours after he had
murdered her was part of the same “criminal episode” as the murder for which
there was ample independent evidence, and so the defendant’s confession for
also abusing the corpse was admissible. Id.
[12] Here, the post-conviction court specifically found that three different acts of oral
sex upon D.W. by Wilson on three separate days would not have constituted a
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“single criminal episode.” Regardless, it found that there was sufficient
corroborative evidence of three different such acts, despite D.W.’s testimony
that there was only one act. In large part, however, the post-conviction court
relied upon the letters from Wilson to his wife and son, especially the last letter
he wrote. Wilson specifically challenged the admission of these letters on
corpus delicti grounds as well, but the post-conviction court did not address that
challenge.
[13] It is unclear whether the corpus delicti rule is intended to apply to any out-of-
court statements made by a defendant, as opposed to only statements made
during police interrogations. Wilson has not cited any cases where the rule was
applied to statements made outside of a police interrogation. And, one of the
central purposes of the rule is reduce “confessions produced by coercive tactics
and the encouragement of thorough police investigations.” Willoughby, 552
N.E.2d at 466. That purpose does not apply to voluntary statements made by a
defendant to third parties who are not law enforcement officers. On the other
hand, the rule has not been explicitly limited only to police interrogation
“confessions” and has been said to apply to “admissions” as well. See, e.g.,
Green v. State, 159 Ind. App. 68, 79, 304 N.E.2d 845, 851-52 (1973) (referring to
corpus delicti rule and application to “an admission or confession”). “‘An
admission differs from a confession in that a confession acknowledges all of the
essential elements of the crime.’” Flanders v. State, 609 S.E.2d 346, 350 (Ga.
2005) (quoting Walsh v. State, 499 S.E.2d 332, 335 (Ga. 1998)). We conclude
that, given the lack of a definitive holding that admissions by a defendant to
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another person outside the context of a police interview are covered by the
corpus delicti rule, we cannot say trial counsel was ineffective for not objecting
to introduction of Wilson’s letters as violating that rule.
[14] In any event, even if both the letters and Wilson’s videotaped statement were
covered by the corpus delicti rule, we believe trial counsel was not ineffective
for failing to object to either the letters or the videotaped statement. D.W.
testified that Wilson molested her over the course of about a year. She
described the acts as progressing from fondling her breasts and vagina over her
clothes, to fondling under her clothes, to kissing her legs but not her vagina, and
finally to an instance where Wilson briefly performed oral sex on her. Even
though D.W. only recalled one instance of oral sex, she described a pattern of
escalating molestation over the course of a year culminating in oral sex. Thus,
there is evidence of D.W. being subjected to repeated sexual acts by Wilson.
Even if her testimony did not establish all the elements for three counts of Class
B felony sexual misconduct with a minor, it did not have to do so in order for
Wilson’s extrajudicial statements to be admissible. Wilson’s videotaped
statement and letters also describe several sexual acts and, although Wilson’s
statements are not perfectly consistent with D.W.’s testimony, there is
significant overlap. In other words, D.W.’s testimony sufficiently corroborates
Wilson’s out-of-court statements.
[15] Wilson nonetheless contends that, because the other two alleged acts of oral sex
with D.W. as related in his videotaped statement occurred on other days than
the act to which D.W. testified, they cannot be considered part of the same
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“criminal episode” and so Wilson’s confession to those other two acts are
inadmissible, per the holding in Workman. We agree that, in strictly applying
the sentencing definition of a “single criminal episode,” the three alleged acts of
oral sex did not constitute such an episode, as found by the post-conviction
court and essentially conceded by the State on appeal. See Smith v. State, 770
N.E.2d 290, 294 (Ind. 2002) (holding defendant’s six cashing of checks stolen
from two victims at different times and at different locations were not a single
episode of criminal conduct because “they were not ‘simultaneous’ and
‘contemporaneous’ with one another”) (quoting Tedlock, 656 N.E.2d at 276).
However, it is not perfectly clear that Workman was intended to create a bright-
line rule whereby a series of crimes falling outside the sentencing definition of
“single criminal episode” was governed by the corpus delicti rule while only
those series of crimes falling within it were exempt from the rule. Rather, we
believe Willoughby and Workman can be read together as indicating that
flexibility should be applied in considering whether the corpus delicti rule has
been satisfied so as to allow admission of a defendant’s extrajudicial admissions
and confessions. Workman looked to the sentencing definition of “single
criminal episode” for guidance, but it did not state that such definition was
binding in all cases in which a corpus delicti issue is raised.
[16] Especially within the context of an ineffective assistance of counsel claim, it
would have been within the broad realm of judgment entrusted to an attorney
to conclude that the corpus delicti rule would not prohibit introduction of
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Wilson’s videotaped statement and letters.3 It appears that the purposes of the
corpus delicti rule were satisfied by D.W.’s testimony: to establish by evidence
independent of Wilson’s out-of-court statements that multiple sex crimes
against her had in fact occurred, and that those statements were not the result of
coercion. As such, we cannot say it was unreasonable for trial counsel not to
object to introduction of Wilson’s videotaped statement and letters. Wilson did
not meet his burden of establishing that he received ineffective assistance of trial
counsel.
Conclusion
[17] The post-conviction court did not clearly err in concluding that Wilson did not
receive ineffective assistance of trial counsel. We affirm the denial of Wilson’s
PCR petition.
[18] Affirmed.
Riley, J., and Bailey, J., concur.
3
Wilson failed to obtain either trial counsel’s presence at the post-conviction hearing or an affidavit from
counsel, and so we know nothing of his thought processes with respect to this issue.
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