Christopher Sutton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 14, 2016
• Docket: 01A05-1507-PC-882
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 14 2016, 5:40 am 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 Kelly A. Kelly Ian McLean Deputy Pubic Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher Sutton, March 14, 2016 Appellant-Defendant, Court of Appeals Case No. 01A05-1507-PC-882 v. Appeal from the Adams Circuit Court State of Indiana, The Honorable Chad E. Kukelhan, Appellee-Plaintiff. Judge Trial Court Cause No. 01C01-1201-PC-1

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 1 of 10 Case Summary and Issue [1] Following a jury trial, Christopher Sutton was convicted of child molesting as a

Class A felony. He subsequently filed a petition for post-conviction relief

alleging ineffective assistance of counsel. During the course of post-conviction

proceedings, Sutton served the State with four proposed Non-Party Requests for

Production of Documents and Subpoenas Duces Tecum pursuant to Indiana

Trial Rule 34(C). The requests were directed at four medical providers and

sought the child victim’s medical records. The State objected to the requests.

The post-conviction court sustained the State’s objection but certified the matter

for interlocutory appeal. We accepted jurisdiction. Concluding the post-

conviction court’s ruling will not prejudice Sutton’s ineffective assistance claim,

we affirm the post-conviction court’s order quashing Sutton’s subpoenas.

Facts and Procedural History [2] Many of the facts relevant to Sutton’s conviction were recounted by this court

on direct appeal:

Seven-year-old Z.H. lived with her mother S.C, her three-year old brother, and thirty-two-year-old Sutton. S.C. and Sutton had lived together for “about 2, 2 years,” and Z.H. called Sutton “daddy.” On July 8, 2008, Z.H. and her brother were in bed with S.C. and Sutton. Z.H. had an issue with wetting herself at night and wore a pull-up diaper. S.C, who is a sound sleeper, did not hear Sutton leave the next morning.

S.C. woke up around 7:00 a.m., and Z.H. was already awake.

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 2 of 10 Z.H. went into the bathroom and her mother told her to take off her clothes so that she could take a bath. Z.H. told S.C. that her vagina hurt. S.C. told Z.H. that she “probably peed [her] pants, um go ahead and take your clothes off you’ll be fine,” and Z.H. stated “no mom my vagina hurts because . . . daddy stuck his penis in my vagina.”

Without talking to Z.H. about what had happened, S.C. called her mother. S.C.’s mother and sister arrived, and her sister called the police. Later that day, Danielle Goewert of the Fort Wayne Child Advocacy Center interviewed Z.H. and the interview was recorded. Z.H. informed Goewert that Sutton put his penis in her vagina the previous night. Z.H. stated that Sutton was asleep because his eyes were closed. Z.H. stated that Sutton’s penis touched her pull-up diaper and that her pull-up diaper went into her vagina. Z.H. also stated that her brother once smacked her in her vagina.

After her interview, Z.H. was examined at the Fort Wayne Sexual Assault Treatment Center by Sharon Robinson, the chief administrative officer and a sexual assault nurse examiner. Robinson asked Z.H. what had happened to her, and Z.H. stated that her “daddy put his penis inside [her] vagina and that he pushed [her] pull up inside with his penis . . . .” Robinson observed Z.H.’s “internal female sex organ” and “her labia minera,” which she described as [“]really dark red . . . .” Robinson also observed petechiae, which is “pin point bruising,” on Z.H.’s labia minera and above her urethra.

When Sutton arrived home, Berne Police Detective James Newbold identified himself to Sutton and asked him if he would come to the police department with him. Sutton said that he would and asked if he was going to jail. During the interview, Detective Newbold told Sutton that the interview related to the fact that Z.H. had told her mother that her vagina hurt. Sutton stated that Z.H. had complained about her vagina hurting for probably the last year. Detective Newbold asked Sutton if there

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 3 of 10 was a particular reason why Z.H.’s vagina would be hurting, and Sutton stated that over the weekend Z.H. complained that she had been hurt on the “swings or something,” but Z.H.’s aunt checked her and determined that she was only scratched. Sutton denied placing his penis in Z.H.’s vagina. When asked why Z.H. would say that he had placed his penis in her vagina, Sutton stated that he is erect in the mornings and that he must roll over Z.H. to exit the bed but that his penis did not touch her. Sutton also indicated that he attempts to be sure that he is “clear” of the children and is “careful” because he knows the children are usually in the bed.

*** On July 14, 2008, the State charged Sutton with child molesting as a class A felony. On December 29, 2008, the State filed a notice of intent to introduce Z.H.’s statement at trial pursuant to Ind. Code § 35-37-4-6, the Protected Persons Statute, and later filed amended notices. On January 5, 2009, the State filed an amended information for child molesting as a class A felony. On June 16, 2009, the court held a protected person hearing on the State’s motion, which Sutton attended. Sutton’s counsel questioned Z.H. Barbara Gelder, a psychologist at the Center for Neuro-Behavioral Services, testified that she had previously met Z.H., reviewed her medical file, and believed that Z.H. would suffer harm by testifying. On June 23, 2009, the court entered an order concluding that Z.H. was a protected person, was unavailable to testify at the trial, and was made available for and was cross-examined by defense counsel during the protected person hearing.

Sutton v. State, No. 01A05-1002-CR-75, 2010 WL 5386318, at *1-2 (Ind. Ct.

App. Dec. 21, 2010) (citations omitted), trans. denied. At trial, the State offered

into evidence a recording of Z.H.’s interview at the Child Advocacy Center, as

well as Z.H.’s testimony from the protected person hearing. Both exhibits were

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 4 of 10 admitted and played for the jury. S.C. testified that “Z.H. stated that her vagina

hurt because Sutton ‘stuck his penis in [her] vagina.’” Id. at *2. Sutton also

testified and denied touching Z.H. in a sexual manner.

[3] The jury found Sutton guilty of child molesting as a Class A felony, and the

trial court sentenced Sutton to forty-five years in the Department of Correction,

with five years suspended. Sutton appealed his conviction, arguing the trial

court erred in admitting Z.H.’s out-of-court statements and portions of Sutton’s

interview with Detective Newbold. Finding no reversible error, we affirmed

Sutton’s conviction, and our supreme court denied his petition to transfer.

Sutton subsequently filed a petition for post-conviction relief alleging ineffective

assistance of counsel. Relevant here, Sutton contends in his petition,

[T]rial counsel failed to conduct an adequate pre-trial investigation and therefore failed to discover and present . . . medical evidence (including evidence of a playground incident the day before the date when Sutton was alleged to have molested Z.H.) that could have been used to show that the physical injuries and emotional impairment of Z.H. were not caused by Sutton . . . .

Appendix to Brief of Petitioner-Appellant at 14.

[4] On December 11, 2014, Sutton served the State with four proposed Non-Party

Requests for Production of Documents and Subpoenas Duces Tecum pursuant

to Indiana Trial Rule 34(C). The requests were directed at four different

medical providers and sought “[a]ll medical records” or “[a]ll medical records

and/or counseling records” for Z.H. dated through July 2008. Id. at 57-74.

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 5 of 10 The State filed an objection to the requests on December 16, 2014. The State

maintained Sutton was “not entitled to a second opportunity to discover the

same evidence that he could have discovered prior to trial” and further objected

because Sutton failed to state “why all of the victim’s medical and counseling

records from the victim’s birth through July 2008 are relevant or necessary.” Id.

at 49-50. Sutton filed a response to the State’s objection, arguing the victim’s

medical records are discoverable under Indiana Trial Rule 26 and relevant to

his petition for post-conviction relief because trial counsel should have reviewed

such records in order to rule out alternative explanations for the victim’s

injuries:

Counsel has consulted with Dr. Steven R. Guertin, MD, at Sparrow Children’s Center in Lansing, Michigan about Sutton’s case. After a review of case materials, Dr. Guertin opined that the medical condition of the victim could have resulted from something other than an incident of molestation. Specifically, the scattered petechiae and redness/swelling could have been caused by aggressive masturbation, straddle injury, streptococcal disease and/or lichen sclerosis et atrophicus.

Id. at 53.1

[5] At a hearing held on February 6, 2015, the State argued the issue was already

litigated at trial because the nurse who conducted Z.H.’s sexual assault

1 Lichen sclerosis et atrophicus is a chronic skin disease characterized by the eruption of flat white hardened papules. Merriam-Webster Online Medical Dictionary, http://www.merriam- webster.com/medical/lichen%20sclerosus%20et%20atrophicus (last visited Mar. 3, 2016).

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 6 of 10 examination testified “the only cause” of Z.H.’s injuries was “[p]enetrati[on]

inside her female sex organ.” Transcript of Trial at 353. The nurse found

Z.H.’s injuries to be consistent with Z.H.’s account of the molestation and

explained to the jury why she believed the injuries were caused by penetration

as opposed to external blunt force trauma or diaper rash. The nurse also

testified that she obtained Z.H.’s medical history prior to conducting the

examination: “prior hospitalizations, any medicines that she currently [was] on,

any medical conditions that she has.” Id. at 341. The nurse completed a

medical history form, which lists attention deficit hyperactivity disorder and

epilepsy as Z.H.’s previous medical history, but she did not offer specific details

about Z.H.’s medical conditions when she testified at trial.

[6] Sutton, by counsel, argued Dr. Guertin would be unable to form an opinion

without additional information about the victim’s medical history, but Sutton

conceded he did not know the extent to which such records were previously

discovered. Post-conviction counsel could not locate Sutton’s file, and trial

counsel could not remember the specifics of the case. Post-conviction counsel

was consulting the State’s file, which contained some medical records but none

that referenced the victim’s “official diagnosis.” Transcript of Hearing at 5.

[7] Following the hearing, the post-conviction court issued an order sustaining the

State’s objection. Sutton filed a motion to certify the matter for interlocutory

appeal pursuant to Indiana Appellate Rule 14(B). The post-conviction court

certified its order quashing Sutton’s subpoenas on June 19, 2015, and we

accepted jurisdiction over the appeal on August 7, 2015.

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 7 of 10 Discussion and Decision A. Standard of Review [8] “Post-conviction proceedings are civil proceedings in which the defendant must

establish his claims by a preponderance of the evidence.” Wilkes v. State, 984

N.E.2d 1236, 1240 (Ind. 2013). The proceedings are “governed by the same

rules ‘applicable in civil proceedings including pre-trial and discovery

procedures.’” Id. at 1251 (quoting Ind. Post-Conviction Rule 1(5)). Post-

conviction courts are given broad discretion in ruling on discovery matters,

however, and we affirm their determinations absent a showing of clear error

and resulting prejudice. Id.

[9] Sutton’s petition for post-conviction relief alleges he received ineffective

assistance of trial counsel. To establish a claim of ineffective assistance of

counsel, a defendant must demonstrate (1) counsel’s performance was deficient,

and (2) the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Counsel’s performance was deficient if it

fell below an objective standard of reasonableness based on prevailing

professional norms. Id. at 688. Likewise, a defendant is prejudiced by counsel’s

deficient performance only if “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 8 of 10 B. Z.H.’s Medical Records [10] Sutton contends he may have a viable claim for ineffective assistance of counsel

because trial counsel possibly failed to investigate Z.H.’s medical history. Sutton

argues he is now entitled to discover Z.H.’s medical records because the records

may contain information that could provide an alternative explanation for Z.H.’s

injuries. In the event the victim’s records did contain this sort of information,

Sutton argues trial counsel would have presented the information to the jury had

he known of the records, which could have resulted in Sutton’s acquittal.

[11] Under the particular facts and circumstances presented here, we cannot say the

post-conviction court’s ruling will result in prejudice to Sutton’s ineffective

assistance claim. See Wilkes, 984 N.E.2d at 1251. Even assuming Z.H.’s

medical records contain information that could provide an alternative

explanation for Z.H.’s injuries, this evidence would not show counsel failed to

adequately investigate, nor would it establish a reasonable probability that the

result of the proceeding would have been different. See Strickland, 466 U.S. at

694. As explained above, post-conviction counsel could not locate Sutton’s file,

and trial counsel could not remember the specifics of Sutton’s case. And in

light of the testimony of the sexual assault nurse, who ruled out alternative

explanations, as well as Z.H.’s disclosure of the abuse, we cannot say an

alternative medical explanation would undermine our confidence in the

outcome of Sutton’s trial.

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 9 of 10 [12] Absent clear error and resulting prejudice, we do not disturb a post-conviction

court’s discovery rulings. Wilkes, 984 N.E.2d at 1251. We see no resulting

prejudice here and accordingly must affirm the post-conviction court’s order

quashing Sutton’s subpoenas.

Conclusion [13] The post-conviction court’s ruling will not prejudice Sutton’s ineffective

assistance claim because evidence supporting an alternative medical

explanation for Z.H.’s injuries would demonstrate neither deficient

performance, nor prejudice to the defense sufficient to undermine confidence in

the outcome of Sutton’s trial. We therefore affirm the post-conviction court’s

order quashing Sutton’s subpoenas.

[14] Affirmed.

Barnes, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 10 of 10