Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited May 15 2014, 6:20 am 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
LINDA K. HUGHES MONIKA PREKOPA TALBOT Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
RICK DELKS, ) ) Appellant-Petitioner, ) ) vs. ) No. 84A01-1309-PC-416 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE VIGO SUPERIOR COURT The Honorable John T. Roach, Judge Cause No. 84D01-1012-PC-4031
May 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issue
Rick Delks appeals the post-conviction court’s denial of his petition for post-
conviction relief, raising the following issue for our review: whether Delks received
ineffective assistance of trial counsel. Concluding the post-conviction court’s denial of
Delks’s petition was not erroneous, we affirm.
Facts and Procedural History
Between December 2007 and January 2008, Delks babysat K.B. and her younger
brother at Delks’s home on a number of occasions. At that time, K.B was five years old.
In January 2008, Shelly Green, a friend of K.B.’s mother, noticed that K.B. acted
strangely around Delks and did not wish to be around him. After speaking with K.B. and
her mother, Green went to the police and filed a report that Delks had molested K.B. On
January 29, 2008, K.B. was taken to an advocacy center where she was interviewed
regarding the alleged molestation, and that interview was videotaped.
On February 12, 2008, Delks was charged with one count of child molesting, a
Class A felony. A two-day jury trial took place on May 5-6, 2009. K.B. was the only
eyewitness to Delks’s molestation and was consequently the State’s star witness at trial.
When called to testify, K.B. demonstrated that she understood the difference between the
truth and a lie and that she was required to tell the truth in court. K.B. testified that while
Delks was babysitting her, he inserted his finger inside her vagina while they were on the
couch in the living room. She also testified that she and Delks watched “bad movies”
that were pornographic in nature. Trial Transcript at 74.
After K.B.’s testimony, the State moved to admit the videotape of the interview of
K.B. conducted by the advocacy center. Delks’s trial counsel objected, arguing that the 2 videotape was inadmissible because it did not bear sufficient indications of reliability.
After discussion outside the presence of the jury, the trial court ruled that the videotape
would be admitted over objection.1 The videotaped interview was then played for the
jury. The content of K.B.’s videotaped statements was consistent with her trial
testimony. She said that Delks had put his finger inside her vagina and that the two had
watched “[d]irty movies” together when Delks babysat her. Trial Tr. at 128. The
videotape also contained additional statements not made during K.B.’s live testimony,
including that Delks sucked on K.B.’s “boobies” and made her touch his “pee pee.” Trial
Tr. at 126, 131.
The jury found Delks guilty as charged. He was sentenced to thirty years, with
twenty-five years executed in the Indiana Department of Correction and five suspended
to be served in community corrections. Delks appealed, and his conviction was affirmed
by this court in an unpublished memorandum decision. See Delks v. State, 924 N.E.2d
679 (Ind. Ct. App. 2010).
In October 2010, Delks filed a pro se petition for post-conviction relief, which was
later amended after appointment of a public defender. Delks’s petition alleged that he
received ineffective assistance of trial counsel. An evidentiary hearing was held on June
12, 2013. On August 30, 2013, the post-conviction court denied Delks’s petition. This
appeal followed.
1 K.B.’s videotaped statement was admitted pursuant to Indiana Code section 35-37-4-6, also known as the Protected Person Statute. 3 Discussion and Decision
I. Standard of Review
A petitioner seeking post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
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 unerringly and
unmistakably to a decision opposite that reached by the post-conviction court.” Stevens
v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). We defer to
the post-conviction court’s factual findings, unless they are clearly erroneous. Id. at 746.
The Sixth Amendment’s “right to counsel is the right to the effective assistance of
counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective
assistance of counsel, a convicted defendant must show (1) that counsel’s performance
was deficient such that it fell below an objective standard of reasonableness based on
prevailing professional norms and (2) the defendant was prejudiced by counsel’s
deficient performance. Id. at 687. When considering whether counsel’s performance
was deficient, the reviewing court begins with a “strong presumption” that counsel’s
performance was reasonable. Id. at 689. A defendant is prejudiced 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.
The two prongs of the Strickland test—performance and prejudice—are
independent inquiries, and both prongs need not be addressed if the defendant makes an 4 insufficient showing as to one of them. Id. at 697. For instance, “[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed” without consideration of whether counsel’s performance was
deficient. Id.
II. Ineffective Assistance of Counsel
Delks claims that he received ineffective assistance of counsel. Specifically,
Delks maintains that his counsel’s objection to K.B.’s videotaped statement should have
focused on an Indiana Supreme Court decision, Tyler v. State, 903 N.E.2d 463 (Ind.
2009), that was decided approximately one month before Delks’s trial. As Delks points
out, the court in Tyler held that if a protected person’s prerecorded statement and live
testimony are both consistent and are otherwise admissible, testimony of the protected
person may be presented at trial by live testimony or through the prerecorded statement,
but not both. Id. at 467.
A discussion of trial counsel’s performance is unnecessary, because we conclude
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited May 15 2014, 6:20 am 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
LINDA K. HUGHES MONIKA PREKOPA TALBOT Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
RICK DELKS, ) ) Appellant-Petitioner, ) ) vs. ) No. 84A01-1309-PC-416 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE VIGO SUPERIOR COURT The Honorable John T. Roach, Judge Cause No. 84D01-1012-PC-4031
May 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issue
Rick Delks appeals the post-conviction court’s denial of his petition for post-
conviction relief, raising the following issue for our review: whether Delks received
ineffective assistance of trial counsel. Concluding the post-conviction court’s denial of
Delks’s petition was not erroneous, we affirm.
Facts and Procedural History
Between December 2007 and January 2008, Delks babysat K.B. and her younger
brother at Delks’s home on a number of occasions. At that time, K.B was five years old.
In January 2008, Shelly Green, a friend of K.B.’s mother, noticed that K.B. acted
strangely around Delks and did not wish to be around him. After speaking with K.B. and
her mother, Green went to the police and filed a report that Delks had molested K.B. On
January 29, 2008, K.B. was taken to an advocacy center where she was interviewed
regarding the alleged molestation, and that interview was videotaped.
On February 12, 2008, Delks was charged with one count of child molesting, a
Class A felony. A two-day jury trial took place on May 5-6, 2009. K.B. was the only
eyewitness to Delks’s molestation and was consequently the State’s star witness at trial.
When called to testify, K.B. demonstrated that she understood the difference between the
truth and a lie and that she was required to tell the truth in court. K.B. testified that while
Delks was babysitting her, he inserted his finger inside her vagina while they were on the
couch in the living room. She also testified that she and Delks watched “bad movies”
that were pornographic in nature. Trial Transcript at 74.
After K.B.’s testimony, the State moved to admit the videotape of the interview of
K.B. conducted by the advocacy center. Delks’s trial counsel objected, arguing that the 2 videotape was inadmissible because it did not bear sufficient indications of reliability.
After discussion outside the presence of the jury, the trial court ruled that the videotape
would be admitted over objection.1 The videotaped interview was then played for the
jury. The content of K.B.’s videotaped statements was consistent with her trial
testimony. She said that Delks had put his finger inside her vagina and that the two had
watched “[d]irty movies” together when Delks babysat her. Trial Tr. at 128. The
videotape also contained additional statements not made during K.B.’s live testimony,
including that Delks sucked on K.B.’s “boobies” and made her touch his “pee pee.” Trial
Tr. at 126, 131.
The jury found Delks guilty as charged. He was sentenced to thirty years, with
twenty-five years executed in the Indiana Department of Correction and five suspended
to be served in community corrections. Delks appealed, and his conviction was affirmed
by this court in an unpublished memorandum decision. See Delks v. State, 924 N.E.2d
679 (Ind. Ct. App. 2010).
In October 2010, Delks filed a pro se petition for post-conviction relief, which was
later amended after appointment of a public defender. Delks’s petition alleged that he
received ineffective assistance of trial counsel. An evidentiary hearing was held on June
12, 2013. On August 30, 2013, the post-conviction court denied Delks’s petition. This
appeal followed.
1 K.B.’s videotaped statement was admitted pursuant to Indiana Code section 35-37-4-6, also known as the Protected Person Statute. 3 Discussion and Decision
I. Standard of Review
A petitioner seeking post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
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 unerringly and
unmistakably to a decision opposite that reached by the post-conviction court.” Stevens
v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). We defer to
the post-conviction court’s factual findings, unless they are clearly erroneous. Id. at 746.
The Sixth Amendment’s “right to counsel is the right to the effective assistance of
counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective
assistance of counsel, a convicted defendant must show (1) that counsel’s performance
was deficient such that it fell below an objective standard of reasonableness based on
prevailing professional norms and (2) the defendant was prejudiced by counsel’s
deficient performance. Id. at 687. When considering whether counsel’s performance
was deficient, the reviewing court begins with a “strong presumption” that counsel’s
performance was reasonable. Id. at 689. A defendant is prejudiced 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.
The two prongs of the Strickland test—performance and prejudice—are
independent inquiries, and both prongs need not be addressed if the defendant makes an 4 insufficient showing as to one of them. Id. at 697. For instance, “[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed” without consideration of whether counsel’s performance was
deficient. Id.
II. Ineffective Assistance of Counsel
Delks claims that he received ineffective assistance of counsel. Specifically,
Delks maintains that his counsel’s objection to K.B.’s videotaped statement should have
focused on an Indiana Supreme Court decision, Tyler v. State, 903 N.E.2d 463 (Ind.
2009), that was decided approximately one month before Delks’s trial. As Delks points
out, the court in Tyler held that if a protected person’s prerecorded statement and live
testimony are both consistent and are otherwise admissible, testimony of the protected
person may be presented at trial by live testimony or through the prerecorded statement,
but not both. Id. at 467.
A discussion of trial counsel’s performance is unnecessary, because we conclude
Delks has not shown prejudice resulting from his counsel’s failure to cite Tyler in his
objection. K.B.’s videotaped statement was largely cumulative of her live testimony at
trial, and there is no dispute that K.B.’s live testimony was sufficient to satisfy each
element of the charge of child molesting.
Delks relies on a statement in Tyler that admission of both a child’s live testimony
and videotaped statements “can be unfairly prejudicial.” Id. However, we recognize the
actual holding in Tyler was that the admission of both live testimony and recorded
statements was not reversible error, where the recorded statements were consistent with
live testimony. Id. That holding was based in part upon the court’s acknowledgment of 5 deference to the trial court’s discretion in assessing prejudicial impact. Id. at 467 n.4.
The post-conviction court in this case noted the holding in Tyler and similarly concluded
that the admission of K.B.’s videotaped statement was not unduly prejudicial. We cannot
say the post-conviction court erred when it concluded Delks was not prejudiced by his
trial counsel’s alleged deficiency.
Conclusion
Concluding the post-conviction court did not err by denying Delks’s petition for
post-conviction relief, we affirm.
Affirmed.
RILEY, J., and BRADFORD, J., concur.