Pursuant to Ind.Appellate Rule 65(D), Nov 12 2013, 5:33 am
this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES D. CRUM GREGORY F. ZOELLER Coots, Henke & Wheeler, P.C. Attorney General of Indiana Carmel, Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN R. TYRRELL, ) ) Appellant-Defendant, ) ) vs. ) No. 29A02-1301-PC-11 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Daniel J. Pfleging, Judge Cause Nos. 29D02-1111-PC-16469, 29D02-0703-FA-31
November 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge John R. Tyrrell appeals the denial of his petition for post-conviction relief. The
sole issue for our review is whether the trial court erred in denying his petition. We
affirm.
FACTS AND PROCEDURAL HISTORY
In January 2006, thirteen-year-old P.C., who lived with her family in Fishers,
began corresponding online with thirty-year-old Tyrrell, who lived in South Carolina.
During the course of their correspondence, Tyrrell, who knew that P.C. was only thirteen
years old, initiated graphic sexual conversations and told her that he wanted to engage in
both oral and vaginal intercourse with her. In February 2006, Tyrrell told P.C. that he
would be passing through Indiana on his way to a new job in Minnesota and could meet
her at her house.
On February 6, 2006, P.C. told her mother that she was sick, and her mother
allowed her to stay home from school by herself while her parents were at work. Tyrrell
called P.C. from a nearby payphone at 10:00 a.m. and arrived at her house shortly
thereafter. Tyrell and P.C. went to P.C.’s bedroom where they engaged in numerous acts
of vaginal and oral intercourse. At about noon, a cleaning service rang the doorbell at
P.C.’s house. P.C. ignored the doorbell until her mother telephoned her and told her to
open the door and let the cleaning people in the house. While P.C. opened the front door,
Tyrrell left out the back door.
The following day at school, P.C.’s class watched a movie about someone “who
got cervical cancer from having sex at age 13.” Transcript at 238. P.C. “freaked out,”
and told her best friend what she had done with Tyrrell. Id. P.C. also contacted Tyrrell
2 and expressed concern about whether he had any sexually transmitted diseases. Tyrrell
told P.C. to stop worrying and that he hoped to see her again “before summer and
hopefully uninterrupted this time.” State’s Exhibit 22a. In another online message,
Tyrrell told P.C., “sorry I had to jet out on you so quick. You’re great.” Id.
The following year, in February 2007, P.C. told her school counselor and parents
what had happened with Tyrrell. Although P.C. only knew Tyrrell’s first name, the
police were able to identify and locate him based on information provided by P.C. and
computer evidence. The ensuing police investigation confirmed that Tyrrell transferred
to Minnesota and began a new job in February 2006. His bank records showed a series of
transactions tracing his route from South Carolina to Minnesota, including a transaction
at a gas station in Danville, Illinois. School records confirmed that P.C. was absent from
school on February 6, 2006, and a cleaning service confirmed that they arrived at P.C.’s
house at approximately 11:45 on February 6. Phone records for P.C.’s home showed an
incoming call to her house at 9:52 a.m. on February 6 from a payphone located a few
blocks from her house.
The State charged Tyrrell with two counts of child molesting, one as a class A
felony and the other as a class C felony. The probable cause affidavit stated that Tyrrell
arrived at P.C.’s house at approximately 10:00 a.m., and was there for two to three hours.
Before trial, defense counsel filed a Notice of Alibi Defense stating that during the
charged date and time, Tyrrell was driving from South Carolina to Minnesota.
Specifically, defense counsel alleged that on February 6, 2006 at 12:32 p.m., Tyrrell was
at a gas station in Danville, Illinois.
3 At trial, the State offered the receipt from the Danville gas station into evidence.
The State also presented evidence that on February 6, 2006, Danville, Illinois was on
central time so that when it was 12:32 p.m. in Danville, it was 1:32 in Fishers, which
would have given Tyrrell sufficient time to drive from P.C.’s house to the gas station in
Danville. Tyrrell testified that he left South Carolina on February 5, 2013, and drove
straight through to Minnesota, stopping only for gas and snacks. He admitted
corresponding online with P.C. but denied engaging in sexual intercourse with her or
having ever seen her in person before the trial.
The jury convicted Tyrrell of both counts. Tyrrell initiated a direct appeal and
then received permission to return to the trial court for a post-conviction proceeding
pursuant to the Davis/Hatton procedure.1 Tyrrell’s sole argument in his post-conviction
petition was that his trial counsel was ineffective because she failed to investigate his
alibi defense. Specifically, according to Tyrrell, when counsel disclosed Tyrrell’s credit
card receipt from the Danville gas station, counsel failed to realize the time zone
difference between Indiana and Illinois. Counsel therefore provided documentary
evidence to the State, which allowed the State to prove Tyrrell could have been in Fishers
at the time of the crime. The post-conviction court concluded that it did not need to
determine whether counsel’s “action caused the representation to fall below an objective
level of reasonableness because the Petitioner has not satisfied his burden to show
prejudice.” Appellant’s Appendix at 301. Specifically, the trial court explained that it
could not say that the “discovery and presentation of the gas station receipt, even if it
1 See Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977); Hatton v. State, 626 N.E.2d 442 (Ind. 1993).
4 were unprofessional conduct, undermines the Court’s confidence in the outcome of trial.
The Petitioner has not met his burden in proving otherwise.” Id. Tyrrell appeals the
denial of his petition.
DISCUSSION
The issue is whether the post-conviction court erred in denying Tyrrell’s petition
for post-conviction relief. In reviewing the judgment of a post-conviction court, this
court considers only the evidence and reasonable inferences supporting its judgment.
Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole
judge of the evidence and the credibility of witnesses. Id. To prevail on appeal from the
denial of post-conviction relief, the petitioner must show that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. Id. Only where the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite conclusion, will the
court’s findings or conclusions be disturbed as being contrary to law. Id.
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Pursuant to Ind.Appellate Rule 65(D), Nov 12 2013, 5:33 am
this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES D. CRUM GREGORY F. ZOELLER Coots, Henke & Wheeler, P.C. Attorney General of Indiana Carmel, Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN R. TYRRELL, ) ) Appellant-Defendant, ) ) vs. ) No. 29A02-1301-PC-11 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Daniel J. Pfleging, Judge Cause Nos. 29D02-1111-PC-16469, 29D02-0703-FA-31
November 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge John R. Tyrrell appeals the denial of his petition for post-conviction relief. The
sole issue for our review is whether the trial court erred in denying his petition. We
affirm.
FACTS AND PROCEDURAL HISTORY
In January 2006, thirteen-year-old P.C., who lived with her family in Fishers,
began corresponding online with thirty-year-old Tyrrell, who lived in South Carolina.
During the course of their correspondence, Tyrrell, who knew that P.C. was only thirteen
years old, initiated graphic sexual conversations and told her that he wanted to engage in
both oral and vaginal intercourse with her. In February 2006, Tyrrell told P.C. that he
would be passing through Indiana on his way to a new job in Minnesota and could meet
her at her house.
On February 6, 2006, P.C. told her mother that she was sick, and her mother
allowed her to stay home from school by herself while her parents were at work. Tyrrell
called P.C. from a nearby payphone at 10:00 a.m. and arrived at her house shortly
thereafter. Tyrell and P.C. went to P.C.’s bedroom where they engaged in numerous acts
of vaginal and oral intercourse. At about noon, a cleaning service rang the doorbell at
P.C.’s house. P.C. ignored the doorbell until her mother telephoned her and told her to
open the door and let the cleaning people in the house. While P.C. opened the front door,
Tyrrell left out the back door.
The following day at school, P.C.’s class watched a movie about someone “who
got cervical cancer from having sex at age 13.” Transcript at 238. P.C. “freaked out,”
and told her best friend what she had done with Tyrrell. Id. P.C. also contacted Tyrrell
2 and expressed concern about whether he had any sexually transmitted diseases. Tyrrell
told P.C. to stop worrying and that he hoped to see her again “before summer and
hopefully uninterrupted this time.” State’s Exhibit 22a. In another online message,
Tyrrell told P.C., “sorry I had to jet out on you so quick. You’re great.” Id.
The following year, in February 2007, P.C. told her school counselor and parents
what had happened with Tyrrell. Although P.C. only knew Tyrrell’s first name, the
police were able to identify and locate him based on information provided by P.C. and
computer evidence. The ensuing police investigation confirmed that Tyrrell transferred
to Minnesota and began a new job in February 2006. His bank records showed a series of
transactions tracing his route from South Carolina to Minnesota, including a transaction
at a gas station in Danville, Illinois. School records confirmed that P.C. was absent from
school on February 6, 2006, and a cleaning service confirmed that they arrived at P.C.’s
house at approximately 11:45 on February 6. Phone records for P.C.’s home showed an
incoming call to her house at 9:52 a.m. on February 6 from a payphone located a few
blocks from her house.
The State charged Tyrrell with two counts of child molesting, one as a class A
felony and the other as a class C felony. The probable cause affidavit stated that Tyrrell
arrived at P.C.’s house at approximately 10:00 a.m., and was there for two to three hours.
Before trial, defense counsel filed a Notice of Alibi Defense stating that during the
charged date and time, Tyrrell was driving from South Carolina to Minnesota.
Specifically, defense counsel alleged that on February 6, 2006 at 12:32 p.m., Tyrrell was
at a gas station in Danville, Illinois.
3 At trial, the State offered the receipt from the Danville gas station into evidence.
The State also presented evidence that on February 6, 2006, Danville, Illinois was on
central time so that when it was 12:32 p.m. in Danville, it was 1:32 in Fishers, which
would have given Tyrrell sufficient time to drive from P.C.’s house to the gas station in
Danville. Tyrrell testified that he left South Carolina on February 5, 2013, and drove
straight through to Minnesota, stopping only for gas and snacks. He admitted
corresponding online with P.C. but denied engaging in sexual intercourse with her or
having ever seen her in person before the trial.
The jury convicted Tyrrell of both counts. Tyrrell initiated a direct appeal and
then received permission to return to the trial court for a post-conviction proceeding
pursuant to the Davis/Hatton procedure.1 Tyrrell’s sole argument in his post-conviction
petition was that his trial counsel was ineffective because she failed to investigate his
alibi defense. Specifically, according to Tyrrell, when counsel disclosed Tyrrell’s credit
card receipt from the Danville gas station, counsel failed to realize the time zone
difference between Indiana and Illinois. Counsel therefore provided documentary
evidence to the State, which allowed the State to prove Tyrrell could have been in Fishers
at the time of the crime. The post-conviction court concluded that it did not need to
determine whether counsel’s “action caused the representation to fall below an objective
level of reasonableness because the Petitioner has not satisfied his burden to show
prejudice.” Appellant’s Appendix at 301. Specifically, the trial court explained that it
could not say that the “discovery and presentation of the gas station receipt, even if it
1 See Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977); Hatton v. State, 626 N.E.2d 442 (Ind. 1993).
4 were unprofessional conduct, undermines the Court’s confidence in the outcome of trial.
The Petitioner has not met his burden in proving otherwise.” Id. Tyrrell appeals the
denial of his petition.
DISCUSSION
The issue is whether the post-conviction court erred in denying Tyrrell’s petition
for post-conviction relief. In reviewing the judgment of a post-conviction court, this
court considers only the evidence and reasonable inferences supporting its judgment.
Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole
judge of the evidence and the credibility of witnesses. Id. To prevail on appeal from the
denial of post-conviction relief, the petitioner must show that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. Id. Only where the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite conclusion, will the
court’s findings or conclusions be disturbed as being contrary to law. Id. at 469.
Here, Tyrrell argues that the post-conviction court erred in denying his petition
because his trial counsel was ineffective. To establish a claim of ineffective assistance of
counsel, a petitioner must demonstrate that counsel performed deficiently and the
deficiency resulted in prejudice. Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). If
we can dismiss an ineffective assistance of counsel claim on the prejudice prong, we need
not address whether counsel’s performance was deficient. Id. Rather, we may proceed to
evaluate whether the alleged error rendered the result of petitioner’s trial fundamentally
unfair or unreliable. Cooper v. State, 687 N.E.2d 350, 353 (Ind. 1997). When making
5 this evaluation, we consider the totality of the evidence, taking into account the effect of
the alleged error. Id.
We find the prejudice issue in this case to be dispositive and therefore do not
address the alleged deficiency in trial counsel’s performance. Specifically, our review of
the evidence reveals that the police located Tyrrell based on P.C.’s information and
computer evidence. Tyrrell admitted that he corresponded with P.C. online. The
evidence revealed that in early February 2006, Tyrrell was traveling from South Carolina
to Minnesota. At approximately 10:00 a.m., Tyrrell telephoned P.C. from a pay phone
near P.C.’s house. Tyrrell went to P.C.’s house where he and P.C. engaged in sexual acts
until the cleaning company arrived at the house. P.C. ignored the initial knock, but when
her mother called and told her to open the door for the cleaning company, Tyrrell slipped
out the back door and continued on to Minnesota.
The following day, P.C. became upset at school after seeing a video about a girl
who had sexual intercourse at age thirteen and contracted a sexually transmitted disease
that led to cancer. P.C. told her best friend what she had done and contacted Tyrrell to be
sure he did not have any sexually transmitted diseases. Tyrrell told P.C. that he hoped to
see her again “before summer and hopefully uninterrupted this time.” State’s Exhibit
22a. In another online message, Tyrrell told P.C., “sorry I had to jet out on you so quick.
You’re great.” Id. Based upon this evidence, there is no reasonable probability that the
result of the trial would have been different had the credit card receipt never been
admitted into evidence. Tyrrell has failed to meet his burden to show that the evidence as
6 a whole leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court.
For the foregoing reasons, we affirm the post-conviction court’s denial of Tyrrell’s
petition for post-conviction relief.
Affirmed.
NAJAM, J., and MATHIAS, J., concur.