MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 30 2017, 9:28 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David L. Whitsett II Curtis T. Hill, Jr.
Frankfort, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randal Shawn Dunham, May 30, 2017
Appellant-Defendant, Court of Appeals Case No.
12A02-1606-CR-1357
v. Appeal from the Clinton Circuit
Court
State of Indiana, The Honorable Bradley K. Mohler,
Appellee-Plaintiff. Judge
Trial Court Cause No.
12C01-1503-F1-289
Mathias, Judge.
[1] Randal Shawn Dunham (“Dunham”) was convicted of Level 4 felony child
molesting after a jury trial in Clinton Circuit Court. Dunham was sentenced to
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seven years in the Department of Correction, three years executed and four
suspended to probation. Dunham appealed, claiming his trial counsel was
ineffective and the sentencing court abused its discretion.
[2] We affirm.
Facts and Procedural Posture
[3] Dunham lived in Frankfort, Indiana, with his girlfriend Renee Knox (“Knox”).
J.B. is Knox’s daughter from a previous relationship, nine years old at the time
of trial. J.B. would stay with Dunham and Knox on the weekends and some
holidays; during the week she stayed with her father and his girlfriend. This
arrangement was voluntary, not court-ordered, and was not the source of any
conflict between the families. J.B. stayed with Dunham and Knox over the long
Thanksgiving weekend in 2014, from Wednesday evening to Sunday evening.
[4] The following Monday, J.B. complained to her grandmother, her father’s
mother, that her “privacy” hurt. Tr. Vol. I, p. 105. This was the word her
grandmother had taught her for “vagina.” Id. J.B.’s complaint was not unusual,
as she sometimes suffered irritation there which both families ascribed to
hygiene problems they were working to correct. Accordingly, her father had
developed a list of questions he would ask J.B. when she complained about her
“privacy” hurting. Among them, her father would ask, “Has anybody possibly
touched you there?” Id. at 81. The answer to this question had always been
“No,” but on that day J.B. answered “Well—” and began to cry. Id. at 82. Her
father blanched and called his girlfriend into the room.
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[5] Before her father and his girlfriend, J.B. said that Dunham had lain down
beside her as she was sleeping on the couch in the living room of Dunham’s
and Knox’s house. Dunham started to touch her vagina beneath her clothes.
J.B. tried to get off the couch, but Dunham pulled her back. J.B. was eventually
able to get off the couch. She went to her room and fell asleep.
[6] Hearing J.B.’s story, her father went to his mother’s house to ask for advice.
Before leaving, he told his girlfriend to record J.B.’s story using her cell phone.
That recording was made but never admitted at trial. J.B.’s grandmother told
her son to call the police, which he did. J.B., her father, and his girlfriend all
went together to the Frankfort Police Department and filed a report. Soon after,
J.B. gave an interview to an investigator from the Department of Child
Services, which corroborated the recording made by her father’s girlfriend. A
Frankfort police detective interviewed the adult actors in the case, including
Dunham, who maintained his innocence.
[7] On March 26, 2015, the State charged Dunham by information in Clinton
Circuit Court with Level 1 felony child molesting and Level 4 felony child
molesting. The court granted the State’s motion to dismiss the Level 1 felony
charge on October 13, 2015. Dunham was tried before a Clinton County jury
over two days, from April 26, 2015, to April 27, 2015. J.B. was the State’s first
witness. Though she could not remember much, she reaffirmed that Dunham
had touched her vagina on the couch. At the close of the State’s case in chief,
Dunham moved for judgment on the evidence, which the court denied.
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[8] Dunham then presented a thorough alibi defense, calling a series of friends and
relatives to testify to his activities over the Thanksgiving holiday. J.B. had slept
at Knox’s ex-sister-in-law’s house on Thursday night so Dunham and Knox
could go Christmas shopping. Dunham had spent most of the long weekend
celebrating with family or working with friends. Specifically, Dunham kept a
workshop in a detached garage at his and Knox’s house where he would work
with his friends on mechanical projects very late into the night. Knox testified
that J.B. always slept in her bedroom, never on the couch in the living room,
and was in bed by the time Dunham came in from the garage. Dunham had
also spent a day driving around the state with friends picking up parts and
material for future projects. Nevertheless, as the State argued in closing, the jury
heard . . . testimony not just from the State, but from the defense
as well . . . that there [were] periods of time when [J.B. was] out
of sight of other people; when [Dunham was] out of sight of
other people; when he [came] into the home in the early morning
hours on several occasions and [Knox was] asleep. . . . There was
ample time over that period of . . . five days that [Dunham] had
access to [J.B.].
Id. at 244.
[9] The jury found Dunham guilty as charged. On May 23, 2016, Dunham was
sentenced to seven years in the Department of Correction, three years executed
and four suspended to probation. Dunham was also required to register as a
“sexually violent predator.” Ind. Code § 35-38-1-7.5(a). In aggravation, the
court weighed Dunham’s “very slight” criminal history, J.B. being younger
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than twelve at the time of the molestation, and Dunham’s position of trust over
J.B. Appellant’s App. pp. 53-54. In mitigation, the court weighed Dunham’s
obligation to support his minor children from earlier relationships. The court
“also consider[ed]” that Dunham’s presentence investigation report rated him a
“very high” risk to re-offend, id. at 54, but in the context of Dunham’s
argument that the presentence investigator improperly rested this conclusion
entirely on Dunham’s failure to “take responsibility” — that is, on his
profession of innocence — and on the high incidence of drug crimes in
Dunham’s neighborhood, a fact irrelevant to Dunham’s case. Tr. Vol. II, p. 27.
[10] Dunham now appeals, claiming that his trial counsel was constitutionally
ineffective for failing to move for judgment on the evidence a second time after
the defense rested, and that the sentencing court abused its discretion by
weighing Dunham’s profession of innocence in aggravation of his sentence.
Discussion and Decision
I. Ineffective Assistance of Counsel
[11] The Sixth Amendment to the federal constitution protects the right of an
accused to receive the effective assistance of counsel for his defense. Strickland v.
Washington, 466 U.S. 668, 686 (1984). A convicted defendant who received
ineffective assistance is entitled to a remedy that will “neutralize the taint of
[the] constitutional violation . . . .” Lafler v. Cooper, 566 U.S. 156, 170 (2012). To
show ineffective assistance, the defendant must show that counsel’s
performance fell below an objective standard of professional reasonableness
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(“the performance prong”), and a reasonable probability the outcome would
have been different but for counsel’s objectively unprofessional errors (“the
prejudice prong”). French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Failure to
satisfy either prong causes the whole claim to fail. Id. “Surmounting Strickland’s
high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
[12] Dunham did not surmount it here. Dunham claims his trial counsel was
ineffective by failing to move for judgment on the evidence a second time after
the defense rested. Dunham argues that, because the trial court could have
weighed his alibi evidence against the State’s evidence, while we could not have
done so on direct review of the sufficiency of the evidence, there was a
reasonable probability that the outcome would have been different had
Dunham’s trial counsel invited the trial court to weigh the evidence before
submitting it to the jury.
[13] This argument fails. As to the performance prong, Dunham has not approached
even the most basic showing required to establish that failure to file a second
motion fell below an objective standard of professional reasonableness. He
alleges in conclusory fashion that the “prevailing norm” is to move for
judgment on the evidence after the close of all the evidence, Appellant’s Br. at
11, see Premo v. Moore, 562 U.S. 115, 122 (2011) (“The question is whether an
attorney’s representation amounted to incompetence under prevailing
professional norms . . . .”), but points to no record evidence establishing such a
norm.
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[14] As to the prejudice prong, Dunham’s argument rests on a misconception of the
standard applied by trial courts on motions for judgment on the evidence.
Contrary to Dunham’s argument, the trial court could not have weighed
Dunham’s alibi evidence against the State’s evidence. On a motion for
judgment on the evidence, “[a] trial court may not invade the province of the
jury by weighing the evidence presented or the credibility of witnesses.” Garcia
v. State, 979 N.E.2d 156, 158 (Ind. Ct. App. 2012) (citing State v. Taylor, 863
N.E.2d 917, 919 (Ind. Ct. App. 2007)). The motion should be granted only if
“the record is devoid of evidence on one or more elements of the offense[,] or . .
. the evidence presented is without conflict and subject to only one inference,
which is favorable to the defendant.” Id. at 157.
[15] This is basically indistinguishable from our standard on direct review of the
sufficiency of the evidence. See Farris v. State, 753 N.E.2d 641, 647 (Ind. 2001)
(“We will not reweigh the evidence or assess the credibility of witnesses.
Rather, we look [only] to the evidence and reasonable inferences [from it] that
support the verdict . . . .”). In other words, with respect to a motion for
judgment on the evidence, the trial court would have been in precisely the same
position after Dunham rested as it was after the State rested, no matter the
exculpatory value of whatever evidence Dunham presented in between. Failure
to move a second time thus cannot have prejudiced Dunham.
[16] It is true that, in ruling on motions to correct error following a jury verdict, the
“thirteenth juror” principle imposes on trial courts a duty to weigh conflicting
evidence. State v. Taylor, 863 N.E.2d 917, 920 (Ind. Ct. App. 2007). However,
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Dunham’s trial counsel never moved to correct error after the jury verdict, and
Dunham does not claim on appeal that failure to do so was objectively
professionally unreasonable. Even if he had, he could not have pointed to any
record evidence in support of such a claim.
[17] For these reasons, Dunham’s ineffective assistance claim fails. We note that
any post-conviction challenge to his lawyer’s trial performance is now
precluded. Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998).
II. Abuse of Discretion at Sentencing
[18] We may review a sentence for abuse of the sentencing court’s discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). Claims for “failure to
‘properly weigh’” aggravating and mitigating factors lie beyond such review, id.
at 491, but a sentencing court abuses its discretion by applying an aggravating
factor that is “improper as a matter of law.” Id. Where a defendant maintains
his innocence in good faith, it is improper as a matter of law to weigh that fact
in aggravation of his sentence. Sloan v. State, 16 N.E.3d 1018, 1027–28 (Ind. Ct.
App. 2014); Kien v. State, 782 N.E.2d 398, 412 (Ind. Ct. App. 2003), trans.
denied. However, even if a sentencing court has improperly applied an
aggravator, we will uphold a sentence greater than the advisory if supported by
proper aggravators and we are confident the sentence would have been the
same had the improper aggravator not been found. Baumholser v. State, 62
N.E.3d 411, 417 (Ind. Ct. App 2016), trans. denied.
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[19] Dunham claims the sentencing court improperly weighed his continuing
profession of innocence in aggravation of his sentence. Assuming without
deciding that Dunham did so in good faith, still Dunham is not entitled to
relief. Both from the bench and in its sentencing order, the court clearly noted
which factors it found in aggravation: Dunham’s criminal history, Appellant’s
App. p. 53; Tr. Vol. II, p. 28; the fact that J.B. was younger than twelve at the
time of the molestation, Appellant’s App. p. 54, Tr. Vol. II, p. 29; and
Dunham’s position of trust over J.B. Appellant’s App. p. 54; Tr. Vol. II, p. 29.
From the bench, the court then “additionally . . . note[d],” Tr. Vol. II, p. 29,
and in its order “also consider[ed],” Appellant’s App. p. 54, the high risk of re-
offense given in the presentence investigation report predicated on Dunham’s
profession of innocence. The court expressly considered this fact in the context
of defense counsel’s argument that maintaining innocence cannot properly
aggravate a sentence. Appellant’s App. p. 54; Tr. Vol. II, pp. 29-30.
[20] Thus, it is not even clear that that the court counted Dunham’s profession of
innocence against him at all. The court was careful to separate out the re-
offense risk assessment from its list of aggravating factors, and to note the
impropriety of maintaining innocence as an aggravator. Moreover, Dunham’s
seven-year sentence was enhanced by one year above the six-year advisory for
Level 4 felonies. See I.C. § 35-50-2-5.5 (level 4 felony sentencing). Given the
presence of three other, unquestionably valid aggravators — two major (the
victim’s age and the perpetrator’s position of trust) and one minor (Dunham’s
criminal history) — and the little aggravating weight, if any, given by the court
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to the re-offense risk assessment, we are confident that Dunham’s lightly
enhanced sentence would have been the same even without any consideration
whatever of the presentence investigation report.
Conclusion
[21] Dunham’s trial counsel was not ineffective, and the sentencing court did not
abuse its discretion. The judgment against Dunham is therefore affirmed.
[22] Affirmed.
Baker, J., and Pyle, J., concur.
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