Rian N. North, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] In September of 2019, a jury found Rian North guilty of three counts of child molesting, and the trial court sentenced him to thirty-six years of incarceration. On direct appeal, we affirmed North's convictions and sentence. In June of 2024, North filed an amended petition for post-conviction relief (“PCR”) in which he alleged that he had received ineffective assistance of both trial counsel and appellate counsel. The post-conviction court denied North's PCR petition. North challenges the post-conviction court's determination as it related to his trial counsel. We affirm.

Facts and Procedural History

[2] In our memorandum decision addressing North's direct appeal, we delineated the following facts:

In 2012, M.S. was eight years old and lived with her mother, stepfather (North), and siblings. One day in 2012, North called M.S. up to the attic and got on top of her. North removed her pants and underwear. M.S. watched him place an “orange condom on his penis” before she closed her eyes. Tr. Vol. II p. 44. He penetrated her vagina with his penis, causing M.S. to have the “terrible feeling” of “not even being able to fight for myself” as he raped her. Id. M.S. later told her mother what had happened, and her mother told her not to tell anyone. North remained in the home. M.S.’s mother and North both began physically abusing her because she had disclosed what had happened. On one occasion, North made her pull down her underwear and “whoop[ed]” her bare buttocks with a belt. Id. at 47.

In 2014, when M.S. was ten years old, North was home with M.S. while her mother was at work. He pulled his penis out of his pants, telling her, “this is what you get for telling your mom.” Id. at 48. He inserted his penis into her mouth until he ejaculated. M.S. was able to later describe in detail what the experience was like.

At some point in her early teenage years, M.S. began smoking marijuana and lived in multiple shelters. She attempted suicide in 2017 and later disclosed the molestations to a probation officer in 2018. The probation officer notified the Department of Child Services and law enforcement.

On September 25, 2018, the State charged North with three counts of child molesting. On October 10, 2018, North was appointed counsel and requested a speedy trial. The trial court set a trial date of December 12, 2018; on December 12, the trial court entered a finding that the docket was congested and reset North's trial to January 24, 2019, over North's objection. On January 3, 2019, North filed a motion to continue through his counsel; the trial court reset the trial to June 12, 2019. On May 20, 2019, North filed another motion to continue through his counsel; the trial court reset the trial to September 4, 2019. On August 26, 2019, North filed another motion to continue. The State objected, and the trial court denied the motion.

At North's September 4, 2019, jury trial, forensic interviewer Lorrie Freiburger testified that M.S. had described “sensory details,” which “are details about an event, in this case sexual, that somebody would have no knowledge of unless they had occurred to them.” Id. at 130. She explained that examples of sensory details could include the color of a condom; the taste, texture, and color of bodily fluid; physical body positions “that a child wouldn't know unless they were physically in those positions”; and the placement of hands during sexual activities. Id. During cross-examination, North's counsel asked Freiburger whether, “as a fourteen (14) year old you can't say if there was any other place she could've gained this knowledge?” Id. at 132.

The State objected, arguing outside the presence of the jury that this question sought to elicit testimony that would violate Evidence Rule 412, which bars evidence about a victim's sexual history. The trial court sustained the objection, observing that the question implied that M.S. would know these details because of events in her life that would be inadmissible under Evidence Rule 412. North's counsel explained that he planned to argue that she could have learned the sensory details of the encounters with North from “the internet, TV, any sorts of friends[.]” Id. at 133. The trial court stated, “Well you can certainly make that argument, but that's not where you were going with that.” Id. North responded, “Okay. I'm not going any further obviously.” Id. In closing argument, North's counsel argued that the sensory details M.S. had described could have come from another source because a fourteen-year-old could have watched television, accessed the internet, or attended a sexual education course in school.

North v. State, 2020 WL 3068465 *1–2 (Ind. Ct. App. June 10, 2020) (footnote omitted).

[3] The jury found North guilty as charged, and the trial court imposed an aggregate sentence of thirty-six years. Id. at *2. On direct appeal, North argued that (1) his right to a speedy trial under Criminal Rule 4(B) had been violated, (2) the trial court had erroneously refused to admit evidence, and (3) his sentence was inappropriate. Id. at *2–3. On June 10, 2020, we affirmed North's convictions and sentence. Id. at *4.

[4] On November 25, 2020, North filed a PCR petition. On June 24, 2024, North filed an amended PCR petition in which he alleged that his appellate counsel had been ineffective for having failed to argue that the trial court had abused its discretion in giving an instruction and that his trial counsel had rendered ineffective assistance by having failed (1) to object to a trial setting date on which another speedy trial had also been set, (2) to object to or suppress inconsistent witness statements, and (3) to object to improper vouching testimony from an expert witness. On September 30, 2024, the post-conviction court denied North's PCR petition.

Discussion and Decision

[5] “Post-conviction procedures do not afford the petitioner with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[6] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. (emphasis in original). “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[7] In arguing that the post-conviction court erred in denying his PCR petition, North contends that his trial counsel had provided ineffective assistance before and during trial. “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[8] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this prong, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[9] Under the second prong, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (emphasis added, internal quotation omitted). A petitioner's failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Williams, 706 N.E.2d at 154).

A. Speedy-Trial Claim

[10] North first contends that his trial counsel provided ineffective assistance by failing to object “to the trial setting when there was another fast and speedy trial previously set for the same date as North's.” Appellant's Br. pp. 14–15. North's initial trial date was set for December 12, 2018, which was sixty-three days after he had made his speedy-trial request. North, 2020 WL 3068465 at *1. On December 12, “the trial court entered a finding that the docket was congested and reset North's trial to January 24, 2019, over North's objection.” Id.

[11] A claim for “ ‘[i]neffective representation based upon counsel's failure to object requires a showing that had a proper objection been made the trial court would have had no choice but to sustain it.’ ” Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App 2009) (quoting Williams v. State, 489 N.E.2d 594, 598 (Ind. Ct. App. 1986), brackets in original)). While speedy trial requests must receive “particularized priority treatment[,]” a trial judge need not “wipe his or her calendar clean, or jam a trial into an opening in a schedule or courtroom that lacks the space, time, and resources to accommodate it.” Austin v. State, 997 N.E.2d 1027, 1041 (Ind. 2013) “They must, however, be mindful of their calendar and the seventy-day window and exercise all reasonable diligence to preserve the defendant's right to a speedy trial.” Id.

[12] North has not shown that there was another trial setting available to him within the seventy-day window. Thus, North has not shown that, had a proper objection been made, the trial court would have had no choice but to sustain it. See Wingate, 900 N.E.2d at 475. In addition, North has not shown that trial counsel knew that there was another trial setting on the same date, that the other trial had priority over North's trial, or that the other trial would actually occur on that date. In fact, the other trial had already been continued twice, which even assuming trial counsel knew that the other trial had been scheduled for the same date, arguably gave trial counsel reason to believe that the other trial would not go to trial on December 12, either. Furthermore, North's counsel did not provide an affidavit corroborating North's allegations. “Where trial counsel is not presented in support, the post-conviction court may infer that trial counsel would not have corroborated appellant's allegations.” Dickson v. State, 533 N.E.2d 586, 589 (Ind. 1989).

[13] The failure to satisfy either prong of the Strickland test means that an ineffective-assistance-of-counsel claim fails. See Williams, 706 N.E.2d at 154. Here, neither prong has been satisfied as North has failed to prove both that his counsel's performance in this regard was deficient and that he was prejudiced by the allegedly deficient performance. North's trial counsel therefore did not render ineffective assistance in this regard. See Grinstead, 845 N.E.2d at 1031.

B. Failure-to-Impeach Claim

[14] North next contends that his trial counsel provided ineffective assistance by failing “to object to [M.S.’s testimony] and [to] and impeach” M.S. Appellant's Br. p. 23. We agree with the State that North is foreclosed from seeking relief on his claim that trial counsel failed to effectively impeach M.S. because North failed to raise this claim in his amended PCR petition.¹ See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (providing that “[i]ssues not raised in the [PCR petition] may not be raised for the first time on post-conviction appeal”).

C. Vouching Testimony Claim

[15] North last contends that his trial counsel was ineffective by failing to object to Freiburger's allegedly improper vouching testimony. Indiana Evidence Rule 704(b) provides that “[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” Vouching testimony “is an invasion of the province of the jurors in determining the weight they should place upon a witness's testimony.” Carter v. State, 31 N.E.3d 17, 29 (Ind. Ct. App. 2015), trans. denied. A petitioner raising a claim of ineffectiveness based on a failure to object to improper vouching testimony must prove that a proper objection would have been sustained if made and that he was prejudiced. Edgin v. State, 657 N.E.2d 445, 447 (Ind. Ct. App. 1995), trans. denied.

[16] Again, at trial,

Freiburger testified that M.S. had described “sensory details,” which “are details about an event, in this case sexual, that somebody would have no knowledge of unless they had occurred to them.” [Tr. Vol. II p.] 130. She explained that examples of sensory details could include the color of a condom; the taste, texture, and color of bodily fluid; physical body positions “that a child wouldn't know unless they were physically in those positions”; and the placement of hands during sexual activities. Id. During cross-examination, North's counsel asked Freiburger whether, “as a fourteen (14) year old you can't say if there was any other place she could've gained this knowledge?” Id. at 132.

The State objected, arguing outside the presence of the jury that this question sought to elicit testimony that would violate Evidence Rule 412, which bars evidence about a victim's sexual history. The trial court sustained the objection, observing that the question implied that M.S. would know these details because of events in her life that would be inadmissible under Evidence Rule 412. North's counsel explained that he planned to argue that she could have learned the sensory details of the encounters with North from “the internet, TV, any sorts of friends[.]” Id. at 133. The trial court stated, “Well you can certainly make that argument, but that's not where you were going with that.” Id. North responded, “Okay. I'm not going any further obviously.” Id. In closing argument, North's counsel argued that the sensory details M.S. had described could have come from another source because a fourteen-year-old could have watched television, accessed the internet, or attended a sexual education course in school.

North, 2020 WL 3068465 at *1–2 (first set of brackets added).

[17] North contends that his trial counsel was ineffective for failing to object to Freiburger's testimony regarding sensory details. Without deciding whether Freiburger's statements amounted to improper vouching, we conclude that North has failed to prove that trial counsel performed deficiently or that he was prejudiced by Freiburger's testimony. North claims that he was prejudiced by Freiburger's testimony because M.S. “could very well have learned these sexual things from many other sources aside from personal experience.” Appellant's Br. p. 28. However, the record shows that trial counsel argued just that. During closing argument, trial counsel argued that M.S. was already a teenager when she met with interviewers and that she could have learned the sensory details at issue from television, the internet, or sexual education in school. Because trial counsel made the very argument at trial that North contends was lost due to his counsel's failure to object to Freiburger's testimony, we fail to see how North was prejudiced by counsel's failure to object to Freiburger's testimony. See Reed, 866 N.E.2d at 769.

[18] Furthermore, the post-conviction court determined that, instead of claiming improper vouching, North's trial counsel “pursued the stronger strategy of trying to cast doubt upon Freiburger's assertion that first-hand experience was the only way of gaining knowledge about the ‘sensory details’ in question[.]” Appellant's App. Vol. II pp. 92–93. We agree that trial counsel's decision not to object was part of an objectively reasonable trial strategy to cast doubt on Freiburger's testimony. When the State objected to North's cross-examination of Freiburger on Rule 412 grounds, North's counsel explained that he planned to argue that M.S. could have learned the sensory details elsewhere. At closing, counsel did argue that the sensory details which M.S. described could have come from another source. Again, we defer to counsel's strategic and tactical decisions. Smith, 765 N.E.2d at 585. “Few points of law are as clearly established as the principle that ‘[t]actical or strategic decisions will not support a claim of ineffective assistance.’ ” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)).

[19] North has failed to show that his counsel's decision to not object to the alleged vouching testimony was not part of an objectively-reasonable trial strategy. See Roche v. State, 690 N.E.2d 1115, 1126 (Ind. 1997) (explaining that a matter of trial strategy “cannot form the basis for establishing ineffective assistance of trial counsel unless there was no sound basis for not pursuing the strategy.”). We conclude that North has failed to establish that his trial counsel was ineffective on this issue, as well.

[20] We affirm the judgment of the post-conviction court.

FOOTNOTES

1.   Moreover, because North presents no argument or relevant authority to show that his trial counsel was deficient or that he was prejudiced by his trial counsel's failure to object to M.S.’s allegedly inconsistent testimony, this argument is waived. See Martin v. Hunt, 130 N.E.3d 135, 137 (Ind. Ct. App. 2019) (“Failure to present a cogent argument results in waiver of the issue on appeal.”); Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”).

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.