Donald G. Karr, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 31, 2018
• Docket: 29A02-1707-CR-1502
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 31 2018, 9:51 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane H. Ruemmele Curtis T. Hill, Jr. Hayes Ruemmele, LLC Attorney General of Indiana Indianapolis, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donald G. Karr, Jr., January 31, 2018 Appellant-Defendant/Petitioner, Court of Appeals Case No. 29A02-1707-CR-1502 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Appellee-Plaintiff/Respondent. William J. Hughes, Judge The Honorable Wayne A. Sturtevant, Judge Trial Court Cause Nos. 29D03-1505-F6-4047 29D05-1703-PC-1576

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 1 of 34 [1] Following a jury trial, Donald G. Karr, Jr. (“Karr”) was convicted of Level 6

felony domestic battery committed in the presence of a child less than sixteen

years of age1 and two counts of Level 3 felony rape.2 The trial court sentenced

Karr to two and one-half years for the battery conviction. For the two rape

convictions, the trial court imposed concurrent fifteen-year sentences, with five

years suspended on each, and ordered the rape sentences to be served

consecutive to the battery sentence, for an aggregate executed sentence of

twelve and one-half years. Karr filed a motion for a new trial, alleging

ineffective assistance of trial counsel, and the trial court denied his motion.

Karr appealed, but then sought a remand to the trial court in order to pursue

post-conviction relief. We granted his request and dismissed his appeal without

prejudice pursuant to Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977) and

Hatton v. State, 626 N.E.2d 442 (Ind. 1993), allowing Karr to later file a new

notice of appeal and raise both the issues that he would have raised in the

original appeal along with new issues created by the post-conviction court’s

ruling on the petition for post-conviction relief.3 Appellant’s App. Vol. II at 33.

1 See Ind. Code § 35-42-2-1.3. 2 See Ind. Code § 35-42-4-1(a)(1). 3 This procedure is referred to by Indiana courts as a Davis/Hatton procedure and involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. Talley v. State, 51 N.E.3d 300, 302 (Ind. Ct. App. 2016), trans. denied; see also Ind. Appellate Rule 37(A) (“At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to the trial court . . . for further proceedings. The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 2 of 34 [2] Karr filed a petition for post-conviction relief, alleging claims of ineffective

assistance of trial counsel, and the trial court denied Karr’s petition, finding that

it was barred by res judicata. Karr initiated this consolidated appeal and presents

the following reordered and restated issues:

I. Whether sufficient evidence supports Karr’s domestic battery conviction and two rape convictions;

II. Whether the trial court abused its discretion in sentencing Karr;

III. Whether the trial court erred when it found that Karr received effective assistance from trial counsel and, therefore, denied Karr’s request for a new trial; and

IV. Whether the post-conviction court erred when, by summary denial, it denied Karr’s petition for post-conviction relief on the basis that his claims of ineffective assistance of counsel were barred by res judicata.

[3] We affirm.

Facts and Procedural History [4] In May 2015, Karr and his then-girlfriend, A.P., along with her three children

(“Children”), ages six, five, and three years old, were living in a residence that

administration of justice.”). The procedure is useful where a defendant needs to develop an evidentiary record to support a claim of ineffective assistance of trial counsel. Talley, 51 N.E.3d at 303.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 3 of 34 Karr and A.P. leased. Karr and A.P. shared a bedroom that was located off the

same hallway as a bedroom that the three Children shared. On the evening of

May 5, 2015, A.P. was home with the Children, and she put them to bed

around 8:00 p.m. As A.P. left the Children’s room and closed the door behind

her, Karr came home from work. He was “agitated” and asked her what she

was doing. Tr. Vol. II at 35. He walked from the front door to the back door

and looked outside, and he accused her of having someone in the house before

he got home. She told him that was not the case, and he became angry and

took her phone from her as she sat on the living room couch, which according

to A.P. was positioned right next to the opening to the hallway, leading to the

Children’s bedroom. Karr believed that A.P. was lying, and his voice got

louder as he accused her. He asked her “to deny it again[,]” and when she did,

he hit her across the cheek with an open hand. Id. at 38. He pulled her off the

couch by her hair, and she fell to the floor. Karr then told A.P. to get up,

saying that she was going to “suck his dick” every day and every night. Id. at

39.

[5] At some point, A.P.’s oldest child (“Child”) came out of her bedroom, and as

she opened the door, Karr went into the hallway and confronted her. Child

said she needed to go to the bathroom, and Karr told her “no” and to go back

to bed. A.P. heard Child begin to cry as she went back into the bedroom, and

Karr closed the door. He returned to A.P., who had gotten herself up from the

floor and was on the couch. He unbuckled his pants, and A.P. put her feet up

“and tried to kick him away” from her. Id. at 40. At that point, A.P. began to

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 4 of 34 have abdominal pains from a preexisting ovarian cyst condition, so A.P. told

Karr that she needed to call her doctor.

[6] He initially refused, but he eventually agreed to let her call her doctor or go to

the emergency room. After A.P. vomited in the bathroom, Karr woke the

Children and told them they were all leaving and taking A.P. to the hospital.

At A.P.’s request, they dropped the Children off at A.P.’s parents’ home on the

way. When A.P. was asked at trial if, when they dropped off the Children at

her parents’ house, she had told her parents that Karr had beaten her and pulled

her hair, A.P. explained that she did not, because at that time her “main focus

was getting the kids away from [Karr] and . . . getting them someplace safe.”

Id. at 42. She feared that saying anything would put herself and the Children in

“more danger.” Id. Once at the hospital, she and Karr walked to the

registration area, and A.P. suggested to him that he go and park the car, and

when she “felt he was out of earshot,” she told the nurse, “I need you to get a

police officer because he’s hitting me.” Id. at 43-44. Karr returned, and they sat

together in an examination room, but then the nurse told Karr that A.P. needed

an ultrasound and he could not go, so she left and went to an ultrasound room,

where Officer Craig Denison (“Officer Denison”) of the Noblesville Police

Department (“NPD”) was waiting for her.

[7] A.P. told Officer Denison what had happened, and he took some pictures. She

also removed from her pocket and showed Officer Denison hairs that had come

loose and fallen out of her head when she was on the couch and Karr was

telling the Child to go back to bed. Officer Denison advised A.P. that he did

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 5 of 34 not believe he could make an arrest of Karr at that time because there was no

immediate bleeding or bruising, but he offered to speak to Karr and to drive

A.P. home or wherever she needed to go. Believing that Karr had calmed, and

deciding “it would be better to just go home and . . . deal with everything the

next morning[,]” A.P. went back home with Karr. Id. at 48-49. A.P. called her

parents to let them know “what was going on” with her trip to the emergency

room,4 and because it was so late, after midnight, the Children stayed with

A.P.’s parents. Id. at 49.

[8] When A.P. and Karr arrived home, she went into the bathroom to get ready for

bed and put on pajamas, and he went to the kitchen. He became angry that she

had purchased “the wrong orange juice” and told her that she “needed to be

doing what he told [her] to do.” Id. at 51. He hit her across her face, and she

fell on the hallway floor. Karr took off his pants and underwear and told her

she was going to “suck his dick.” Id. at 52. He forced himself into her mouth,

but at some point stopped and “lectured” her about the rules he was setting for

her. Id. at 53. Eventually, Karr said he wanted to go to bed, so A.P. got into

bed. When he came into bed, he said he needed to masturbate. According to

A.P., he searched his phone for a pornographic video and told her to put her

hand on his penis. She complied because “every time I told him no[,] I was

either hit or forced to do something anyway[.]” Id. at 54. He later asked her to

4 We note that, after talking to Officer Denison, but before leaving the hospital, A.P. received an ultrasound associated with the cysts.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 6 of 34 perform oral sex, which she did “[o]ut of fear of what would happen if I said

no.” Id. During this time, she saw a light behind her; she turned her head and

saw it was his cell phone “so I assumed he was taking a video.” Id. at 55. Karr

ejaculated on A.P., and both of them fell asleep.

[9] Karr went to work the next day, and, after she showered, A.P. went to a

doctor’s appointment. At her appointment, the doctor had already received

record of A.P.’s emergency room visit. The doctor asked A.P. to tell her “what

had happened,” referring to the situation with Karr. Officer Michael Boudreau

(“Officer Boudreau”) of NPD came and met A.P. at the doctor’s office, and at

A.P.’s request, an advocate from Prevail, a victim’s assistance agency, also met

with A.P. to help her prepare a request for a protective order. A.P did not go

home after the appointment because she was admitted to the hospital for pain

associated with the ovarian cysts. A.P. called her parents and asked her mother

to take the Children “someplace away from the house” and asked her father to

pick up her car from the hospital. Id. at 58. Meanwhile, Karr and A.P.

exchanged some casual text messages throughout the day. However, Karr

became angry when A.P. stopped responding to him. Officer Boudreau

prepared a probable cause affidavit, and Karr was arrested during a traffic stop.

[10] Before being released from the hospital, A.P. met with a forensic nurse, who

examined her, and took pictures of areas where Karr had hit A.P. and pulled

her hair. After being discharged, A.P. met with Detective Michael Haskett

(“Detective Haskett”) of NPD. Within the next week or two, A.P. and her

Children were interviewed by Indiana Department of Child Services (“DCS”).

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 7 of 34 [11] On May 28, 2015, the State filed an amended information charging Karr with

Counts 1 through 5, as follows: Count 1, Level 6 felony domestic battery;

Count 2, Level 3 felony rape; Count 3, Level 3 felony rape; Count 4, Level 6

felony strangulation; and Count 5, Level 6 felony intimidation. A jury trial was

conducted on the charges in August 2016.

[12] A.P. was the first witness. She described the layout of the home where she,

Karr, and the Children resided. She said that the bedroom she shared with

Karr and the Children’s bedroom were both located off “a very small hallway,”

were “maybe six feet apart” in the hall, and, generally, she would be able to

hear the Children talking in their room after she put them to bed in the

evenings. Tr. Vol. II at 34. As to the night in question, she described that Karr

believed she had secretly had someone else in the house right before he got

home and sent the person out the front door as he came in the back. He

became very angry at her, and, after he first hit her, he “continued to hit [her]

several times again, both with an open hand and with a closed fist” on both

sides of her face and on her head. Id. at 39. She said that when he pulled her

off the couch by her hair, “It hurt a lot. I could feel and hear hair ripping out of

my head.” Id. A.P. said that she was on the floor, kneeling in front of the

couch, when her oldest Child came out of her room, and Karr went and told

Child to go back to bed. A.P. described that Child’s voice sounded “timid and

a little scared.” Id. at 40. A.P. explained that she went home from the hospital

later that night with Karr because “I was looking for some kind of protection

and if he wasn’t going to be arrested at that point then I felt that my only other

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 8 of 34 course of action would be to file for a protective order and I wasn’t going to be

able to do that until the next morning[.]” Id. at 49.

[13] A.P. stated that the trip home from the hospital was uneventful, but that, when

they got home, Karr became angry that she got the wrong juice and demanded

that she perform oral sex on him. When she tried to avoid it, he threatened to

carve “C-U-N-T” into her forehead. Id. at 52. She described that she was

crying and choking and gagging when he forced his penis in her mouth. Id.

[14] On cross examination, defense counsel asked A.P. why she went home with

Karr that night from the hospital after he had beaten her and why she did not

leave once he fell asleep. She explained that she went home with him so that he

would not know she had told her story at the hospital or to a police officer and

that she planned to seek a protective order the next day. She said she did not

leave after he fell asleep because she was afraid of waking him or of him

following her. She did not go to a neighbor’s house because she did not know

her neighbors. She was asked, and denied, that at any time she removed her

hair from either the shower drain or her hair brush.

[15] Among other witnesses, Officers Denison and Boudreau also testified for the

State. Officer Denison testified to meeting with A.P. at the hospital when she

was in the E.R. He did not observe any injuries to her at that time, but noted

that “sometimes bruises, scratches, abrasions, swelling doesn’t show up until a

later date.” Id. at 154. Officer Denison characterized her demeanor as serious,

but she was “not frantic or crying.” Id. at 147. According to Officer Denison,

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 9 of 34 A.P. did not want him to speak with Karr or her Children, telling him that she

“didn’t believe that her kids had witnessed any of the actual assault that

occurred,” and “it was just the verbal part that they had witnessed or heard.”

Id. at 150. He stated that A.P. seemed fearful or had concerns about possessing

the Prevail documents that he had given her, which he found was not unusual

in cases of domestic abuse. A.P. told Officer Denison she planned to obtain a

protective order the next day.

[16] Officer Boudreau testified that he was dispatched to the hospital on May 6,

2015, to take a report of a sexual assault. A Prevail representative was also

present during his interview with A.P. He did not observe any injuries to A.P.

and did not collect evidence from her. He was aware of a sexual assault

examination being conducted later in the day, and the following day, Officer

Boudreau wrote a probable cause affidavit for Karr’s arrest.

[17] Forensic nurse examiner Nakia Bowens (“Bowens”) testified that she examined

A.P. on May 7, 2015. She described A.P. as calm at times, but “tearful” at

other times. Id. at 182. She observed “redness and tenderness” in A.P.’s scalp

area and tenderness on her jawbone and redness to her chin, and an injury to

the inside of her lip. Id. at 185-86, 190-91, 203. She also had petechiae, or

“small red dots that indicate blood has burst,” on the roof of her mouth. Id. at

191. One of the causes of petechiae is blunt force trauma. Id. at 191-92.

Bowens testified that a penis striking the roof of the mouth could cause

petechiae. Pictures taken of A.P. by Bowens were admitted into evidence.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 10 of 34 [18] Detective Haskett met with A.P. on May 8 at the police station to get a formal

statement from her. He described her demeanor as “collected and matter-of-

fact,” but tearful at times. Id. at 215. He did not observe any injuries to her at

that time. Id. at 221. Sergeant Matt McGovern (“Officer McGovern”) of NPD

testified that, pursuant to a search warrant, he conducted a forensic analysis of

Karr’s cell phone. Officer McGovern testified that “sometimes” law

enforcement is able to retrieve deleted content, but it depends on the make and

model of the cell phone. Id. at 226.

[19] At the conclusion of the presentation of the State’s evidence, Karr moved for

and was granted a directed verdict on Count 5, Level 6 felony intimidation. Id.

at 242. Thereafter, the defense presented the testimony of DCS employee

Marshall Despain (“Despain”). In May 2015, Despain was an assessment

worker, who was assigned to investigate allegations of domestic violence

between A.P. and Karr and determine “how it affected the [C]hildren.” Tr. Vol.

III at 3. Despain testified to interviewing A.P. in May 2015, then consulting

with law enforcement, reviewing reports, and interviewing the Children. He

also tried to contact Karr for an interview. DCS ultimately determined that the

report “was unsubstantiated against both [A.P.] and [] Karr[,]]” meaning that

there was no evidence that the Children were affected or had “any knowledge

of anything every happening between them[.]” Id. at 2-3. He explained that his

purpose was not to determine if something happened between the parents; he

was to assess if the Children were affected and to make sure they were safe.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 11 of 34 [20] At the conclusion of the trial, the jury returned verdicts of guilty on Count 1,

Level 6 felony domestic battery, Count 2, Level 3 felony rape, and Count 3,

Level 3 felony rape; it returned a verdict of not guilty on Count 4, strangulation.

[21] The parties appeared on September 2, 2016, for a sentencing hearing, but by

that point, Karr’s trial counsel, Joshua Taylor (“Taylor”), had filed a motion to

withdraw. Karr appeared in person at the September 2 hearing, along with

Taylor and replacement defense attorney Jane Ruemmele (“Ruemmele”), who

sought leave to file an appearance for Karr and a continuance of the sentencing

hearing. Id. at 78. The trial court granted both Taylor’s request to withdraw

and Karr’s request to continue the sentencing hearing.

[22] The day before the scheduled September 2 sentencing hearing, Karr also had

filed a motion for a new trial based upon ineffective assistance of trial counsel.

Ruemmele noted to the court at the September 2 hearing that Karr’s ineffective

assistance claims were still preliminary and would later be supplemented

because Karr did not yet have a copy of the trial transcript or A.P.’s medical

records, including any medications A.P. was taking or had received at the E.R.,

which information Ruemmele argued would have been relevant to A.P.’s

memory of the alleged incidents, and thus, the ineffective assistance claims

would be supplemented upon review of those materials. On September 2, Karr

proceeded to present Taylor’s testimony relative to Karr’s ineffective assistance

of counsel claims as alleged in his motion for a new trial. Among other things,

Taylor testified as to what medical records he requested or did not request,

what witnesses he called or did not call, and why he did not explore alleged

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 12 of 34 drug use by A.P., explaining that his actions were based upon strategic

decisions and assessments. He also discussed having made a motion in limine,

making certain objections, and his decision not to request a mistrial at one point

because he believed “things were going about as well as they could have at that

point,” and Taylor believed “there was a decent chance the jury would find Mr.

Karr not guilty[.]” Id. at 97. Taylor testified that, both before and during trial,

Karr and Taylor had discussed whether to have Karr testify and the risks

associated with him doing so, noting his concern that having Karr testify would

provide a chance for “fairly harmful” evidence to come into evidence. Id. at 99.

In closing the hearing, the trial court directed that a trial transcript be prepared

for Karr’s use and review in preparing for the hearing on a motion for a new

trial, and took the motion for a new trial under advisement.

[23] On September 19, 2016, the trial court conducted an additional evidentiary

hearing on Karr’s ineffective assistance of trial counsel claims, as alleged in his

motion for a new trial, presenting testimony of: A.P.; a male neighbor; Officer

McGovern; and Taylor. A.P. was questioned about what prescriptions she had

filled on or before May 5, the night in question, and if she received intravenous

medications while at the E.R. During her testimony, A.P. stated that she was

not impaired before or during the incident and any medications taken did not

affect her ability to recall the events. Id. at 135. When on cross-examination

Karr’s counsel asked A.P. why she showered before being examined by the

forensic nurse, A.P. explained, “I was trying to carry on with the day as if it

was normal. Also had no expectation of being examined by anyone for

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 13 of 34 anything. At that time my understanding was that nothing was going to be

done and my only plan for the day was to file for a protective order.” Id. at

132. Officer McGovern, who had conducted a forensic analysis of Karr’s cell

phone and recovered videos, searches, texts and other information from it,

testified that he did not find any evidence of searches or viewing of

pornographic videos, as A.P. had testified to at trial, and he found no videos of

A.P. performing sex acts, contrary to A.P.’s testimony that she thought Karr

was videotaping her when she saw his cell phone light behind her. Upon cross-

examination by the State, Officer McGovern testified that he is not always able

to recover deleted content from a phone. Id. at 141.

[24] At the conclusion of the hearing, the trial court denied Karr’s motion for a new

trial, and it also issued a written order, stating, “The Court being duly advised

finds that the Defendant, has failed to establish that trial counsel Joshua Taylor

was ineffective at trial by either error or omission or commission and has

further failed to establish that any conduct by Mr. Taylor prejudiced the case of

the Defendant.” Appellant’s App. Vol. III at 7.

[25] In November 2016, the trial court held a sentencing hearing, sentenced Karr to

two and one-half years on the battery conviction and to fifteen years with five

years suspended for each rape conviction, and ordered the sentences for the

rape convictions to run concurrent with one another and consecutive to the

term imposed on the battery conviction. Karr timely filed a notice of appeal.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 14 of 34 [26] On January 6, 2017, Karr filed a Davis/Hatton petition with this court, seeking

to suspend his initial appeal and pursue post-conviction remedies. We granted

his request, and, on March 3, 2017, Karr filed a petition for post-conviction

relief, alleging that Taylor, his trial counsel, was ineffective by: (1) failing to use

phone records that showed that Karr’s phone did not contain photos or videos

of A.P. performing oral sex, although A.P. testified that Karr may have been

photographing or videotaping her; (2) failing to use phone records that showed

that Karr’s phone did not contain evidence that he accessed pornographic sites,

although A.P. had testified that he searched for pornography when she told him

she did not want to engage in oral sex; (3) failing to obtain medical records of

A.P. to discover whether she had been administered anesthesia at the E.R. in

the hours prior to the alleged acts that formed the basis of the rape charges; (4)

failing to obtain A.P.’s prescription records to determine if she had filled a

prescription for narcotics the same day as the alleged battery; (5) failing to offer

during trial text messages showing conversations between Karr and A.P. that

indicated A.P had filled a prescription for Narco on May 5, 2015; (6) failing to

offer at trial a text message sent by A.P. to someone, in which she stated that

she had received an IV and felt better, which Karr asserted “establish[es] that

she was under the influence of narcotics.” Appellant’s App. Vol. IV at 3-4.

[27] After filing his motion for post-conviction relief, Karr filed a motion for change

of judge, which was granted on March 20, 2017. In May 2017, the State filed a

Motion for Summary Denial of Karr’s petition for post-conviction relief,

asserting that the claims raised in Karr’s petition had already been litigated and

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 15 of 34 adjudicated by the trial court pursuant to Karr’s motion for new trial. Id. at 18-

22. Following briefing, the post-conviction court granted the State’s request

and issued an order on June 13, 2017. The order stated that evidence was heard

during two hearings on Karr’s motion for a new trial that alleged ineffective

assistance of counsel, and the post-conviction court’s order further stated, in

part:

13. Although the Petitioner has abandoned two grounds of alleged ineffectiveness of counsel originally raised in the trial court, the allegations now raised in the Petitioner’s Petition for Post-Conviction Relief are otherwise the same. All of the grounds alleged in the pending Petition were directly argued, were available to be argued from the evidence and/or were available to be raised at the time of the hearing on Petitioner’s Motion for a New Trial.

14. In his Motion for a New Trial, the Petitioner sought to have his convictions for Domestic Battery and Rape vacated based upon the alleged ineffective assistance of counsel. This is the exact same relief requested in the Petitioner’s Petition for Post- Conviction Relief, and that relief is sought based upon the exact same grounds that were raised or could have been raised and determined under Petitioner’s Motion for a New Trial.

15. Finally, and most obviously, the parties to the controversy in the current matter are the same as those who were the parties to the original criminal case.

16. A court may grant a motion by either party for summary disposition of a petition for post-conviction relief when it appears that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 16 of 34 17. In this case, there is no genuine issue of material fact because the evidentiary issues now raised by the Petitioner have already been heard and decided against Petitioner in the original trial court.

Id. at 129-132. Karr filed a motion to reconsider, which the post-conviction

court denied. Karr now appeals.

Discussion and Decision

I. Sufficiency of the Evidence [28] Karr contends that the State presented insufficient evidence for the jury to

conclude that he was guilty of domestic battery and two counts of rape.5 Our

standard of review is deferential to the factfinder, and we consider only the

evidence and reasonable inferences most favorable to the convictions, neither

reweighing evidence nor reassessing witness credibility. Taylor v. State, 86

N.E.3d 157, 163 (Ind. 2017). We will reverse only if no reasonable factfinder

could find the defendant guilty. Id. at 164. The evidence is not required to

overcome every reasonable hypothesis of innocence and is sufficient if an

inference may reasonably be drawn from it to support the verdict. Drane v.

State, 867 N.E.2d 144, 147 (Ind. 2007).

5 We note that in both his issue statement and his argument section, Karr claims that his “conviction” (singular) is not supported by sufficient evidence, which suggests to us that he is appealing only one conviction. Appellant’s Br. at 2, 41. However, Karr later urges in his brief that, for the reasons argued, we vacate his “convictions” (plural). Id. at 44. We thus infer that he is challenging the sufficiency of the evidence as to all three of his convictions.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 17 of 34 [29] To prove Karr committed Level 3 felony rape, the State was required to present

sufficient evidence that he caused A.P. to “perform or submit to other sexual

conduct” when she was “compelled by force or imminent threat of force[.]”

Ind. Code § 35-42-4-1(a)(1). Indiana Code section 35-31.5-2-221.5 defines

“other sexual conduct” as “an act involving ... a sex organ of one person and

the mouth or anus of another person.” Karr argues, “There was no forensic

evidence establishing that a sex act occurred[,]” noting that officers did not

observe physical injuries, Officer McGovern did not find pornographic videos

on Karr’s phone, nor any videos or pictures of A.P. performing oral sex.

Appellant’s Br. at 20.

[30] We reject Karr’s argument. First, it ignores that nurse Bowens found evidence

of physical injuries to A.P., including an injury to the inside of her lip and

petechiae on the roof of A.P.’s mouth, and Bowens testified that a penis striking

the roof of the mouth could cause petechiae. Second, there does not need to be

“forensic evidence establishing that a sex act occurred” to support the

convictions. “A rape conviction may rest solely on the uncorroborated

testimony of the victim.” Carter v. State, 44 N.E.3d 47, 54 (Ind. Ct. App. 2015)

(citing Potter v. State, 684 N.E.2d 1127, 1136 (Ind. 1997)).

[31] Karr also contends that, as to the Level 6 felony domestic battery conviction,

there was no evidence that any battery occurred within the presence of a child.6

6 Pursuant to the version of Indiana Code section 35-42-2-1.3, under which Karr was charged and convicted, the offense of domestic battery is a Class A misdemeanor, but becomes a Level 6 felony, “if the person who

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 18 of 34 Indiana courts have recognized, “[T]he critical question in determining whether

a child is ‘present’ for purposes of the statute is whether a reasonable person

would conclude that the child might see or hear the offense; not whether the

child is in the same room as where the offense is taking place.” Manuel v. State,

971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012); see also True v. State, 954 N.E.2d

1105, 1111 (Ind. Ct. App. 2011) (“presence” for purposes of Indiana Code

section 35-42-2-1.3(b)(2) is “defined as knowingly being within either the

possible sight or hearing of a child”).

[32] In support of his position, Karr points to the fact that A.P. had already put the

Children to bed in their own bedroom by the time he came home on the night

in question. Karr also notes that A.P. told Officer Denison that she did not

think that the Children had witnessed the battery. Tr. Vol. II at 150. However,

the inquiry is not whether any of the Children witnessed the battery; it is whether

it was committed in their presence, including within their possible hearing.

Here, Officer Denison’s testimony was that A.P. told him that she “didn’t

believe that her kids had witnessed any of the actual assault that occurred,” and

“it was just the verbal part that they had witnessed or heard.” Id. Further, the

State presented evidence that (1) the couch was positioned next to the “very

small hallway” off of which the Children’s bedroom was located, and (2) A.P.

generally could hear the Children talking after she put them to bed in the

committed the offense . . . committed [it] in the physical presence of a child less than sixteen years of age, knowing that the child was present and might be able to see or hear the offense.”

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 19 of 34 evenings, allowing the inference that they, too, could hear what was happening

outside of their room. Id. at 34. Evidence was also presented that, during the

time that Karr was yelling at A.P. and telling her to “suck his dick,” the oldest

Child opened her bedroom door. Karr confronted Child at her door and told

her to go back to bed, at which point A.P. heard Child begin to cry and go back

into her own bedroom. Id. at 39. Based on the record before us, we find that

the State presented sufficient evidence from which the jury could reasonably

infer that the battery was committed within the presence of a child.

[33] Karr also argues that A.P.’s testimony as to the battery and the rape allegations

is not to be believed because she was questioned about, but could not recall,

certain details before, during, and after, the incidents, including whether she

was taking pain medication(s), if she had filled a certain prescription, or for

what period of time the incidents lasted. Appellant’s Br. at 41-42. Karr asserts,

“Her lack of memory could have been that she consumed drugs that day, was

administered drugs that day, or both, or was simply fabricating the events.” Id.

at 43. He argues that her testimony showed that “she had significant

deficiencies in her ability to recall the details of her allegations,” and her

testimony was incredibly dubious and should not be believed. Id.

[34] The incredible dubiosity rule allows an appellate court to impinge upon the fact-

finder’s assessment of witness credibility when the testimony at trial was so

“unbelievable, incredible, or improbable that no reasonable person could ever

reach a guilty verdict based upon that evidence alone.” Moore v. State, 27

N.E.3d 749, 751 (Ind. 2015). Incredible dubiosity is a difficult standard to

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 20 of 34 meet, requiring ambiguous, inconsistent testimony that “runs counter to human

experience.” Carter, 44 N.E.3d at 52. Our Supreme Court has reiterated the

limited scope of the rule and set out three requirements for its application: (1) a

sole testifying witness; (2) testimony that is inherently contradictory, equivocal,

or the result of coercion; and (3) a complete absence of circumstantial evidence.

Moore, 27 N.E.3d at 756.

[35] Here, A.P. related her version of events to at least the following: Officer

Denison at the E.R., her doctor the next day, Officer Boudreau, a victim’s

advocate from Prevail, Detective Haskett, and nurse Bowens. Her testimony

was not inherently contradictory or equivocal, and there is no evidence or

assertion that it was the result of coercion. Thus, the incredible dubiosity rule is

inapplicable. Further, the rule requires a complete absence of circumstantial

evidence. In this case, Bowens testified to the injuries that she observed to

A.P.’s scalp, lip, and mouth, which were consistent with A.P.’s description of

what happened with Karr. Karr’s claim that A.P.’s testimony was not credible

is a request for us to reweigh the evidence, which we cannot do on appeal.

Carter, 44 N.E.3d at 54. The State presented sufficient evidence to sustain

Karr’s three convictions.

II. Sentencing [36] Karr challenges his sentence of an executed twelve and one-half years, claiming

it is excessive, and he asks us to remand for a new sentencing hearing or,

alternatively, reduce it. Initially, we note that Karr makes the assertion that his

sentence “is inappropriate in light of the nature of the offense and [his] Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 21 of 34 character[,]” Appellant’s Br. at 46, but he does not specifically make any

argument or analysis as to either the nature of the offense or the character of the

offender. Thus, he has waived any inappropriateness argument under Indiana

Appellate Rule 7(B). Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010)

(failure to make cogent argument regarding the nature of defendant’s offense

and defendant’s character results in waiver of appropriateness claim).

[37] Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal for an abuse of discretion. Kubina v. State, 997 N.E.2d

1134, 1137 (Ind. Ct. App. 2013). A trial court abuses its discretion if its

decision is clearly against the logic and effect of the facts and circumstances

before the court, or the reasonable, probable, and actual deductions to be drawn

therefrom. Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d

218 (Ind. 2007). A trial court may be found to have abused its discretion by

failing to enter a sentencing statement at all; entering a sentencing statement

that explains its reasons for imposing a sentence where such reasons are not

supported by the record or are improper as a matter of law; or entering a

sentencing statement that omits reasons which are clearly supported by the

record and advanced for consideration. Id. at 490-91. “[R]egardless of the

presence or absence of aggravating or mitigating circumstances, a trial court

may impose any sentence authorized by statute and permissible under the

Indiana Constitution.” Kubina, 997 N.E.2d at 1137 (citing Indiana Code

section 35-38-1-7.1, providing non-exhaustive list of aggravating and mitigating

circumstances court may consider).

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 22 of 34 [38] The range of penalties for a Level 6 felony is a fixed term of between six months

and two and one-half years, with the advisory sentence being one year. Ind.

Code § 35-50-2-7. The range of penalties for a Level 3 felony is a fixed term of

between three and sixteen years, with the advisory sentence being nine years.

Ind. Code § 35-50-2-5. Here, Karr received two and one-half years on the

domestic battery conviction and fifteen years, with five years suspended, on

each of the rape convictions. In sentencing Karr, the trial court found as

aggravating factors that Karr had a history of criminal behavior and that his

record reflected that he engaged in what the trial court termed a “pattern” of

similar behavior, committing a battery after a breakup or as a relationship was

ending. Tr. Vol. III at 232-33. The trial court recognized as mitigating that his

incarceration would result in unusual circumstances and hardship for his

parents, who relied on him for financial support.

[39] On appeal, Karr argues that the trial court should also have recognized as a

mitigating circumstance that he suffered multiple concussions in his life. The

record reflects that, at the sentencing hearing, Karr’s parents testified that Karr

suffered a concussion on four occasions, and they described that he had

resulting dizziness, memory issues, and increased agitation or frustration. No

medical evidence was presented, nor any suggested connection as to how those

concussions affected his actions on the day in question. It is well recognized

that a trial court is not obligated to find a circumstance mitigating because it is

advanced as such by the defendant. Weedman v. State, 21 N.E.3d 873, 893 (Ind.

Ct. App. 2014), trans. denied. Karr also takes issue with the fact that the trial

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 23 of 34 court stated, “[Y]ou are guilty of having raped . . . [A.P.] . . . and having

battered her rather severely in the presence, physical presence of her daughter.

These are serious crimes.” Tr. Vol. II at 233. He urges that there was no

evidence of “severely” beating A.P., and the trial court erred when it used that

circumstance as an aggravator. Upon review of the record, we find that,

contrary to Karr’s claim, the trial court did not use this as an aggravator, and,

rather, as the State suggests, it was a comment that was part of the court’s

discussion of the jury’s verdict. The trial court did not rely on the severity of

the battery as an aggravating circumstance. Karr has failed to establish that the

trial court abused its discretion when it sentenced him.

III. Ineffective Assistance of Trial Counsel [40] Karr claims that the trial court erred when it determined that he did not receive

ineffective assistance of trial counsel and, so finding, denied his motion for a

new trial, which sought relief on that basis. To succeed on a claim of ineffective

assistance of counsel, a petitioner must show not only that his trial counsel’s

representation fell below an objective standard of reasonableness, but also that

the deficient performance resulted in prejudice. Manzano v. State, 12 N.E.3d

321, 325 (Ind. Ct. App. 2014) (quoting Timberlake v. State, 753 N.E.2d 591, 603

(Ind. 2001)) (quotations omitted), trans. denied, cert. denied 135 S. Ct. 2376

(2015). To establish prejudice, a petitioner must show that counsel’s errors

were so serious as to deprive him of a fair trial because of a reasonable

probability that, but for counsel’s unprofessional errors, the result would have

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 24 of 34 been different. Id. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id.

[41] There is a strong presumption that counsel rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment. Id. Counsel is afforded considerable discretion in choosing strategy

and tactics, and these decisions are entitled to deferential review. Id. Isolated

mistakes, poor strategy, inexperience, and instances of bad judgment do not

necessarily render representation ineffective. Id. at 325-26. We do not second

guess counsel’s strategic decisions requiring reasonable professional judgment

even if the strategy or tactic, in hindsight, did not best serve the defendant’s

interests. Elisea v. State, 777 N.E.2d 46, 50 (Ind. Ct. App. 2002). If it is easier to

dispose of an ineffectiveness claim by analyzing the prejudice prong alone, that

course should be followed. Manzano, 12 N.E.3d at 326.

[42] Karr asserts that, at trial, “defense counsel’s theory was that the allegations

were fabricated[,]” and “Thus, it was incumbent on trial counsel to present all

readily available sources of evidence to prove that these event[s] did not occur.”

Appellant’s Br. at 31. Karr maintains that Taylor should have but failed to

present evidence of drug consumption by A.P. at or near the time of the

incidents, through investigation and discovery of medical information such as

A.P.’s prescriptions that she was taking or had been prescribed or the E.R.

records on the night in question. He suggests that if the jury knew of A.P.’s

prescribed pain and anxiety medication, trial counsel could have effectively

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 25 of 34 impeached her regarding her ability to remember and recount the events in

question.

[43] At the hearing on Karr’s motion for a new trial, Taylor was asked about why he

“did not explore [A.P.’s] drug use prior to or during the first offense[,]” and he

replied that Karr would be the only person who would have been able to testify

to that, and Karr did not testify. Tr. Vol. II at 97. Karr argues that Taylor could

have requested her prescription medication or “asked A.P. when she testified.”

Appellant’s Br. at 33. A pharmacy bag was admitted during the hearing on

Karr’s motion for a new trial indicating that A.P. filled a prescription for Narco

on May 5, 2015. Also admitted at the hearing were medical records from

A.P.’s doctor’s visit on May 7, 2015, which reflected that A.P. reported taking

hydrocodone. Tr. Vol. III at 122; Ex. Vol. IV at 122. Karr urges that “[t]he jury

never heard this evidence because trial counsel did not present it.” Appellant’s

Br. at 34.

[44] Effective representation requires adequate pretrial investigation and

preparation, but we resist judging an attorney’s performance with the benefit of

hindsight. McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013).

Accordingly, when deciding a claim of ineffective assistance for failure to

investigate, we give a great deal of deference to counsel’s judgments. Id. at 201.

Strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable, and strategic choices made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitation on investigation. Id.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 26 of 34 In other words, counsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations unnecessary.

Id.

[45] Here, A.P. testified at the hearing that she may have filled a prescription earlier

in the day, but did not recall for certain if or where she did so, and she testified

that she was not impaired due to drug consumption and her memory was not

affected by any medication. A.P.’s testimony was clear and detailed, and there

was no evidence suggesting she did not remember the events in question. She

was consistent with what she told Officer Denison at the E.R. that night, and

there was no evidence that she exhibited signs of impairment. Karr has failed

to show that he was prejudiced by Taylor’s decision not to obtain and present

medical records evidence concerning any drugs A.P. may have consumed prior

to the domestic battery.

[46] Karr also asserts that trial counsel should have obtained medical records from

the E.R. as to what medications she received at the hospital, as that would have

affected her memory of what happened thereafter, including the forced oral sex

supporting the rape charges. He argues, “Whether she was under the influence

of anesthesia and dreaming or imagining the events was important to explore”

and “had trial counsel properly impeached her with her drug consumption of

opiates and anesthesia administered at the ER . . . the outcome would have

been different.” Appellant’s Br at 33, 43. Initially, we note that there is no

evidence in this record that A.P. was given “anesthesia” at any point. Upon

Karr’s questioning at the hearing on his motion for a new trial, A.P.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 27 of 34 acknowledged that she sent a text while at, or before leaving, the hospital to

someone, stating “I got an IV for meds so I’m feeling a lot better.” Tr. Vol. III

at 124. However, she also stated, “I'm not sure whether I actually received the

IV medications or if I just told him that.” Id. Furthermore, A.P. testified that

at no time was she impaired, and she had no issues with remembering what

Karr did to her. As the State observes, “[T]he totality of the evidence . . .

supports only that A.P. was clear of thought and speech at all relevant times[,]”

including in her interviews with nurse Bowens, who characterized A.P. as calm

but tearful at times, with Officer Denison, who described her as calm and

composed but concerned, and Detective Hackett, who said she was “matter of

fact” but sometimes would “tear up” while describing what happened.

Appellee’s Br. at 30; Tr. Vol. II at 146-47, 160, 182, 214-15. Furthermore, Taylor

testified at the hearing that it was his strategic decision not to obtain the

records. Tr. Vol. III at 124. Karr has failed to show that Taylor’s tactical

decision to not try to obtain A.P.’s prescription and medical records, which

may or may not have been discoverable or admissible, 7 was unreasonable or

that Karr was prejudiced by trial counsel’s choice.

[47] On appeal, Karr also contends that Taylor was ineffective for failing to present

to the jury that Officer McGovern conducted a forensic analysis of Karr’s

7 “To make a sufficient showing that [rape victim’s] prescription drug records were discoverable, [the defendant] must demonstrate that his request was particular and material.” Williams v. State, 819 N.E.2d 381, 386 (Ind. Ct. App. 2004), trans. denied. “[W]hile generally evidence of drug use may be excluded at trial, evidence of drug use affecting a witness’s ability to recall underlying events is admissible.” Id.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 28 of 34 phone, but did not find any evidence that Karr (1) had accessed pornographic

videos, as A.P. had stated in her testimony, and (2) had photographed or

videotaped A.P., as she suspected when she saw the light of his phone behind

her. He argues, “Trial counsel never presented this affirmative evidence to the

jury[,]” which “was in the possession of the State and readily available,” and it

“showed that A.P.’s story could not be corroborated.” Appellant’s Br. at 38.

[48] As an initial matter, we disagree that A.P.’s story “could not be corroborated”;

as discussed above, the injuries and redness observed by nurse Bowens were

consistent with the reports that A.P. made to police. Regardless, even if the

trial counsel had presented the evidence, and the jury was persuaded that A.P.

was incorrect when she said that Karr was viewing pornography and recording

her acts with his cell phone, such evidence would not necessarily undermine her

account of the incidents, i.e., Karr has not established that he was prejudiced by

the failure to present the cell phone evidence.

[49] We further note that Karr was charged with five counts. Taylor successfully

argued for and received a directed verdict on one count and successfully

received an acquittal on one of the remaining counts. Several pieces of

evidence were excluded from evidence based upon Taylor’s objections, and he

thoroughly cross-examined witnesses, including A.P. We conclude that Karr

has not established either deficient performance or prejudice stemming from

trial counsel’s representation. The trial court correctly determined that Taylor

had not provided ineffective assistance and, therefore, appropriately denied

Karr’s motion for a new trial.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 29 of 34 IV. Denial of Post-Conviction Relief [50] After the trial court denied his motion for a new trial, Karr filed a notice of

appeal with this court, which pursuant to his request, we dismissed without

prejudice, allowing him to file a petition for post-conviction relief, which he

did, also requesting and receiving a change of judge. The State filed a motion

for summary denial of Karr’s petition for post-conviction relief, which motion

the trial court granted on the basis that Karr was raising the same ineffective

assistance of counsel claims that that he had asserted in his motion for a new

trial – which had already been heard and decided – such that his post-

conviction claims were barred by res judicata. Karr asserts that the post-

conviction court’s denial of his petition was erroneous and asks us to vacate the

decision and remand to the post-conviction court for a hearing.

[51] A petitioner seeking post-conviction relief bears the burden of establishing

grounds for relief by a preponderance of the evidence. Post-Conviction Rule

1(5). A post-conviction court is permitted to summarily deny a petition for

post-conviction relief if the pleadings conclusively show the petitioner is entitled

to no relief. P-C.R. 1(4)(f). “‘An evidentiary hearing is not necessary when the

pleadings show only issues of law; [t]he need for a hearing is not avoided,

however, when a determination of the issues hinges, in whole or in part, upon

facts not resolved.’” Kuhn v. State, 901 N.E.2d 10, 13 (Ind. Ct. App. 2009)

(quoting Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied).

On appeal, “A petitioner who is denied post-conviction relief appeals from a

negative judgment, which may be reversed only if the evidence as a whole leads

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 30 of 34 unerringly and unmistakably to a decision opposite that reached by the post-

conviction court.” Collins v. State, 14 N.E.3d 80, 83 (Ind. Ct. App. 2014).

[52] Karr’s petition for post-conviction relief asserted that Taylor provided

ineffective assistance in the following summarized ways: (1) he failed to offer at

trial phone records showing that Karr’s phone (a) did not contain photos or

videos of A.P. during the oral sex and (b) did not contain evidence that he

accessed pornographic sites; (2) he failed to obtain medical records of A.P. to

discover whether she had been administered anesthesia at the E.R. and failed to

obtain A.P.’s prescription records to determine if she had filled a prescription

for narcotics the same day as the alleged battery; and (3) he failed to offer at

trial a text message written by A.P. showing that (a) she filled a prescription for

Narco on May 5, 2015, and (b) she sent a text message to someone from the

hospital before leaving the E.R. stating that she had received an IV and felt

better. Appellant’s App. Vol. IV at 3-4.

[53] The post-conviction court determined that these issues were litigated at the two

hearings on Karr’s motion for a new trial and were barred by claim preclusion.

Id. at 130. We agree. “‘Res judicata, whether in the form of claim preclusion or

issue preclusion (also called collateral estoppel), aims to prevent repetitious

litigation of disputes that are essentially the same, by holding a prior final

judgment binding against both the original parties and their privies.’” M.G. v.

V.P., 74 N.E.3d 259, 264 (Ind. Ct. App. 2017) (quoting Becker v. State, 992

N.E.2d 697, 700 (Ind. 2013)). “‘Claim preclusion applies when the following

four factors are present: (1) the former judgment was rendered by a court of

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 31 of 34 competent jurisdiction; (2) the former judgment was rendered on the merits; (3)

the matter now at issue was, or could have been, determined in the prior action;

and (4) the controversy adjudicated in the former action was between parties to

the present suit or their privies.’” Id. (quoting Dawson v. Estate of Ott, 796

N.E.2d 1190, 1195 (Ind. Ct. App. 2003)). When claim preclusion applies, all

matters that were or might have been litigated are deemed conclusively decided

by the judgment in the prior action. Id.

[54] Here, the record reflects that, at the first hearing on Karr’s motion for a new

trial, held on September 2, 2016, Karr presented testimony from trial counsel,

Taylor, and, among other things, Taylor testified as to what medical records he

requested or did not request, what witnesses he called or did not call, and why

he did not explore alleged drug use by A.P., explaining that his actions were

based upon strategic decisions and assessments. Understanding that Karr’s

counsel, Ruemmele, needed a trial transcript to further explore ineffectiveness

issues, the trial court scheduled a second hearing, and it directed that a trial

transcript be prepared promptly for Ruemmele’s use. The second hearing was

held September 19, at which Karr presented the testimony of four witnesses,

including A.P., who testified that she was not impaired and her memory was

not affected by any medications. Officer McGovern testified that, while his

forensic analysis of Karr’s cell phone did not show that Karr accessed

pornographic sites or had taken pictures or video of A.P., he also testified that it

is not always possible to recover deleted material from a phone. Karr also

presented seven exhibits, including a prescription bag from CVS pharmacy for a

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 32 of 34 hydrocodone-acetaminophen prescription for A.P. and medical records from

Community North from her E.R. visit. Ex. Vol. IV at 119, 121-22 (Def. Exs. D,

E).

[55] Karr refers us to the recognized principle that “[a]n issue previously considered

and determined in a defendant’s direct appeal is barred for post-conviction

review on grounds of prior adjudication - res judicata[,]” and urges that, here,

“Because Karr has not challenged the adequacy of his trial representation on

direct appeal, his ineffective assistance claims are not waived.” Appellant’s Br. at

26-27 (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531

U.S. 829 (2000), and Overstreet v. State, 877 N.E.2d 144, 178 (Ind. 2007), cert.

denied, 555 U.S. 972 (2008)). We do not find that Karr’s claims are waived; we

find that his claims of ineffective assistance of counsel have already been raised,

heard, and decided. To the extent that Karr is arguing that only those claims of

ineffective assistance of counsel that were raised on direct appeal may be barred

by res judicata, we disagree with his suggestion that direct appeal is the exclusive

basis for rendering the ineffectiveness assistance claims barred. We find that, in

the unique posture and context of this case,8 it was not error for the post-

conviction court to find that Karr was not entitled to relitigate the claims, and

8 The State suggests that Karr’s petition for post-conviction relief was the functional equivalent to a successive petition “because it raised only the same claims previously presented to the trial court for adjudication[,]” and our Supreme Court has explained that, “[A] defendant is entitled to one post-conviction hearing and one post-conviction opportunity to raise the issue of ineffective assistance of trial counsel in the absence of newly discovered evidence or a Brady violation.” Appellee’s Br. at 27 (citing Daniels v. State, 741 N.E.2d 1177, 1184-85 (Ind. 2001)). Our holding today is consistent with the Supreme Court’s reasoning.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 33 of 34 we find no error with its decision to grant the State’s request for summary

denial of Karr’s petition for post-conviction relief.9

[56] Affirmed.

[57] Bailey, J., and Pyle, J., concur.

9 We also reject Karr’s claim that – due to trial counsel’s alleged ineffectiveness, combined with the trial court’s comment during the hearing on the motion for a new trial, where the trial court stated that it was “pretty certain” that it would not have granted any request by trial counsel for A.P.’s prescription records, Tr. Vol. III at 102 – he was denied his right to explore bias and motive, was thereby denied his right to confrontation and a fair trial, and was entitled to post-conviction relief. Reply Br. at 14.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 34 of 34