William E. Gilliland, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] William E. Gilliland appeals the post-conviction court's denial of his petition for post-conviction relief. Gilliland raises three issues for our review, which we restate as follows:

1. Whether he received ineffective assistance of appellate counsel for not raising an issue related to the possible severance of the charges.

2. Whether his trial counsel rendered ineffective assistance by not calling a possible witness at trial.

3. Whether his trial counsel rendered ineffective assistance by not objecting to certain evidence.

[2] We affirm.

Facts and Procedural History

[3] The facts underlying Gilliland's convictions for Class A felony child molesting and two counts of Class C felony child molesting were stated by our Court in his direct appeal:

In 2001, Gilliland retired from General Motors and purchased a business in Pendleton, Indiana[,] that had been operating as a glass and gift shop. By 2006 or 2007, Gilliland had transitioned the business to function solely as the Old Fashion Candy Store.

In January 2010, A.A. (Father) opened an office for his mortgage company in the rental space located above Gilliland's candy store. Father and J.A. (Mother) worked out of the rented space and soon befriended and grew to trust Gilliland. Four of their five children, F.A., O.A., A.A., and A.J.A., would spend quite a bit of time at the office because their school was located a few blocks away. The children “spent a lot of time downstairs in the candy shop.” F.A. took a particular interest in “hanging out and talking” with Gilliland. When F.A. was ten years old, she began helping out at the candy shop several days a week. Gilliland eventually paid F.A. two dollars an hour for restocking candy, working the cash register, and helping customers. F.A. testified that she trusted Gilliland and described him as being “like a grandfather” to her.

F.A. and her sisters also spent time with Gilliland outside of the candy store. In January 2011, Father became ill and had to be hospitalized. Gilliland offered to have the three girls, F.A., O.A., and A.A., stay with him in his home for a few nights so Mother could stay at the hospital. At the time, F.A. was ten years old, O.A. was nine years old, and A.A. was eight years old. F.A. and A.A. slept in Gilliland's guest bedroom while O.A. slept downstairs on the couch. F.A. spent the night at Gilliland's home on two other occasions.

On one occasion, Gilliland told F.A. to go upstairs to the guest bedroom and undress to her bra and underwear because he was going to clean her up. Gilliland told F.A. that he had been trained to clean up people and that he had done so when he was in Vietnam. Gilliland asked F.A. to lie on the floor on her back with her knees propped up. He told her that she needed to lie still and that she “need[s] to be healthy because only good girls get to be healthy.” He then removed her underwear and used a wet washcloth to wipe her chest area. Gilliland then proceeded to wipe F.A.’s vaginal area and inserted his finger in and out of her vagina. He did not wash any other areas of her body. F.A. testified that Gilliland's actions hurt her and made her feel “very uncomfortable” and “confused[.]” F.A. observed blood on the washcloth Gilliland used to wipe her vagina. After the incident, Gilliland offered F.A. snacks and a drink and asked her if she wanted to watch a movie. Gilliland engaged in similar behavior with F.A. a total of three to four times. On perhaps as many as two occasions, Gilliland brought a video camera and faced it toward F.A.’s vaginal area as he engaged in this conduct.

F.A. also described incidents when Gilliland “play wrestled” with her while she was in her underwear. He would tickle her upper thigh, near her vagina. Gilliland had an erection while doing this. On another occasion, Gilliland had the girls watch a movie with him that contained a sexual scene in which the actress was clothed in an outfit comprised of blinking lights over her breasts and private area. Gilliland told the girls he should buy outfits like that for them.

On another occasion, Gilliland took F.A. and her sisters to his son's farm where the three girls swam in a pond, went fishing, and played with puppies. Before leaving the farm, Gilliland checked the girls for fleas. He pulled A.A. aside and lifted her shirt so he could examine her chest area. He then pulled down her shorts and underwear, exposing her “no-no square,” which is the term she uses for her “private area.” Gilliland “pulled [A.A.’s vagina] apart,” looked at it, and moved his hands around it. He did not check any other parts of A.A.’s body.

After leaving the farm Gilliland took the girls back to his home, where he told F.A. that he needed to more thoroughly check her for fleas. He directed F.A. to go to the guest bedroom, get out of her clothes, and lie on the floor just as she had on previous occasions. Gilliland then spread F.A.’s legs apart, looked in her vaginal area, and poked and prodded inside her vagina with his fingers. He did not check any other parts of her body for fleas. After he was done, he instructed F.A. to shower and get dressed. Gilliland then called F.A.’s sister, A.A., into the guest bedroom. As A.A. entered, F.A. told her that Gilliland was “checking for fleas.”

During another night when the girls stayed at Gilliland's home, A.A. wet the bed. A.A. told Gilliland about it, and he took her into the guest bedroom and had her remove her clothing. He then instructed A.A. to lie on the bed with her legs spread apart so he could wipe her vagina with a wet washcloth. A.A. explained that Gilliland kept rubbing the inside and outside of her vagina, making her feel “[a]wkward and uncomfortable.” Gilliland told A.A., “Don't be loud,” and wiped her chest with the washcloth as well.

In April 2012, Father and Mother divorced and Father moved his office into his home. The children stopped going to Gilliland's candy store on a regular basis, but F.A. continued to work for Gilliland until about May 2012. In early 2014 F.A. began having trouble sleeping and started having nightmares. She became angry and sad and started cutting herself. In May 2014, F.A. disclosed to her parents what Gilliland had done to her. In July 2014, F.A. attempted suicide by taking an overdose of Adderall and Prozac. F.A. thought she was “nasty and dirty and disgusting” and thought her parents would be ashamed of her because of what Gilliland had done.

After the suicide attempt, F.A. was placed in intensive inpatient therapy where she talked about what had happened to her. A.A. subsequently disclosed what Gilliland had done to her as well. The Madison County Sheriff's Department initiated an investigation, which included executing a search warrant at Gilliland's home. Officers found a video recording device in the guest bedroom that F.A. later identified as being the device he used to record his actions toward her. The recording device contained a deleted, close-up video of a two to four year old girl spreading her vagina with her hands. The girl was not F.A. or A.A.

Gilliland was subsequently arrested and[,] on December 29, 2014, the State charged him with Count I, Class A felony child molesting; Counts II and III, Class C felony child molesting; Count IV, Class C felony child exploitation; Count V, Class D felony possession of child pornography; and Count VI, Level 6 felony possession of child pornography. A four-day jury trial commenced on July 21, 2015. The jury found Gilliland guilty of Counts I, II, and III and not guilty of Counts IV and V [while the State dismissed Count VI]․

Gilliland v. State, No. 48A02-1508-CR-1246, 2016 WL 2983881, at *1-3 (Ind. Ct. App. May 24, 2016) (mem.) (some alterations in original; footnote and citations to the record omitted), trans. denied.

[4] Following a sentencing hearing, the trial court ordered Gilliland to serve an aggregate term of forty years in the Department of Correction. On direct appeal, Gilliland challenged only his sentence. We affirmed. Id. at *1.

[5] Thereafter, Gilliland filed his petition for post-conviction relief, which he subsequently twice amended. In his last-amended petition, he asserted, in relevant part, that he had received ineffective assistance from his trial and appellate counsel when they did not pursue severance of the child pornography and exploitation charges from the molestation charges; that he had received ineffective assistance from his trial counsel when his trial counsel did not call a certain witness who Gilliland believed would have supported his defense; and that he had received ineffective assistance from his trial counsel when his trial counsel did not object to the Father's testimony that “other young girls also worked at Gilliland's store.” Appellant's Br. at 7 (citing Trial Tr. Vol. 2, pp. 316, 320).

[6] The post-conviction court held an evidentiary hearing on Gilliland's claims. Gilliland's trial and appellate attorneys testified at that hearing. Thereafter, the post-conviction court entered findings of fact and conclusions of law denying Gilliland's petition.

[7] This appeal ensued.

Standard of Review

[8] Gilliland appeals the post-conviction court's denial of his petition for post-conviction relief following an evidentiary hearing. Our Supreme Court has made our standard of review in such appeals clear:

Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). “Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. The defendant bears the burden of establishing his claims by a preponderance of the evidence. P.-C.R. 1(5). When, as here, the defendant appeals from a negative judgment denying post-conviction relief, he “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). When a defendant fails to meet this “rigorous standard of review,” we will affirm the post-conviction court's denial of relief. DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001).

Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019).

[9] Gilliland's challenges to the post-conviction court's judgment relate to the performance of his attorneys. As our Supreme Court has recognized:

Ineffective assistance of counsel claims are evaluated under the well-known, two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, [the petitioner] must show that: (1) counsel's performance was deficient based on prevailing professional norms; and (2) the deficient performance prejudiced the defense. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at 687, 104 S. Ct. 2052). “Failure to satisfy either prong will cause the claim to fail.” French v. State, 778 N.E.2d 816, 824 (Ind. 2002).

In analyzing whether counsel's performance was deficient, the Court first asks whether, “ ‘considering all the circumstances,’ counsel's actions were ‘reasonable[ ] under prevailing professional norms.’ ” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (quoting Strickland, 466 U.S. at 668, 104 S. Ct. 2052). Counsel is afforded considerable discretion in choosing strategy and tactics, and judicial scrutiny of counsel's performance is highly deferential. Id.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). Counsel is afforded considerable discretion in choosing strategy and tactics and these decisions are entitled to deferential review. Id. at 746-47 (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052). Furthermore, isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. at 747 (citations omitted).

To demonstrate prejudice, “the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. 2052.

Conley v. State, 183 N.E.3d 276, 282-83 (Ind. 2022) (brackets original to Conley).

1. Gilliland's attorneys did not render ineffective assistance by not pursuing severance of the charges.

[10] Gilliland first contends that the post-conviction court erred when it denied his petition because both his trial and his appellate attorneys failed to adequately pursue whether the child pornography and exploitation charges should have been severed from the molestation charges. The child molestation charges were based on Gilliland's acts toward F.A. and A.A. The child pornography and exploitation charges were based on Gilliland's use of the camera, which contained footage of an unknown third child but not footage of F.A. or A.A.

[11] The parties dispute whether the issue of severing the charges was properly preserved by trial counsel and thus available to argue on direct appeal. Trial counsel did move to sever the charges, which the trial court denied. Accordingly, we will assume for the sake of argument that the denied motion was sufficient to preserve the issue for direct appeal.

[12] As we are assuming for the sake of argument that the severance issue was properly preserved by trial counsel, this issue is best framed as whether appellate counsel rendered ineffective assistance by not challenging the trial court's denial of the motion to sever on direct appeal. To show inadequate performance of appellate counsel, Gilliland must demonstrate, among other things, that the unraised severance issue was “significant and obvious from the face of the record” and a “clearly stronger” issue than the sentencing issues that were raised on direct appeal. Wilson v. State, 157 N.E.3d 1163, 1178 (Ind. 2020) (quotation marks omitted).

[13] We initially address the State's argument that, because the three charges that Gilliland now asserts should have been severed did not result in convictions, his argument here must have resulted in harmless error, if any error. In support of that proposition, the State cites Dill v. State, 727 N.E.2d 22, 24 (Ind. Ct. App. 2000), summarily aff'd on this issue, 741 N.E.2d 1230, 1234 (Ind. 2001). In Dill, we held that “any error in [the trial court's] refusing to sever the charges was harmless” because the defendant had been acquitted of the charges he claimed should have been severed. Id. But, in reaching that conclusion, we emphasized that the charges on which the defendant was convicted “were based on evidence so dissimilar from the evidence concerning” the other charges that the jury could not have applied the evidence from one set of charges to the other. Id.

[14] That is not the case here. Unlike in Dill, here the State charged Gilliland with molesting F.A. and A.A. and also charged Gilliland with child pornography and exploitation, which offenses were focused on a third child but resulted from the use of a camera that F.A. had referenced in her testimony. Given that evidentiary overlap, we cannot say that any error here must have been harmless due only to the fact that Gilliland was not convicted on the child pornography or exploitation charges.

[15] But that evidentiary overlap also demonstrates why there was no ineffective assistance of appellate counsel. Indiana Code section 35-34-1-9(a) (2014) provides that

two or more offenses may be joined if the offenses are of similar character or if they are part of a single scheme or plan. However, [Indiana Code section] 35-34-1-11(a) grants a defendant an absolute right to severance for offenses that have been joined “solely on the ground that they are of the same or similar character.” By contrast, when offenses are joined because they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme, the defendant does not have an absolute right to severance and the trial court is allowed discretion in determining whether or not to sever the offenses․

Id. Applying that law, our Supreme Court has stated that “an interconnected police investigation into the crimes” and “overlapping evidence” will support the trial court's decision to not sever offenses. Pierce v. State, 29 N.E.3d 1258, 1266 (Ind. 2015).

[16] Here, the investigation into the child molestation allegations led officers to discover the camera, which, in turn, resulted in the child pornography and exploitation offenses. And F.A. referenced Gilliland's use of the camera during her testimony. Thus, the interconnected investigation and the overlapping evidence supported the trial court's decision to not sever the offenses. The severance issue therefore was not a significant and obvious issue available to appellate counsel and was not clearly stronger than the sentencing issues raised on direct appeal by Gilliland's appellate counsel.

2. Gilliland's trial counsel did not render ineffective assistance by not calling a witness.

[17] Gilliland also argues that his trial counsel rendered ineffective assistance when he did not call Gilliland's daughter-in-law, Tori, as a witness.¹ Had she been called as a witness, Tori would have testified that she had two daughters close in age to F.A. and A.A.; that she recalled F.A. and A.A. “getting fleas when visiting her farm” outside of Madison County during one summer; and that, during that same visit, she never had F.A. and A.A. “out of her sight” and never saw Gilliland alone with them. Appellant's App. Vol. 2, p. 69. Gilliland's trial counsel testified to the post-conviction court that he knew of Tori's putative testimony but did not call her as a witness because he did not think that her testimony was sufficiently “specific” to be meaningful. Tr. p. 32.

[18] And, his assertions notwithstanding, Gilliland does not demonstrate otherwise in this appeal. Therefore, Gilliland's trial counsel acted within his broad strategic discretion by not calling Tori as a witness, and the post-conviction court did not err on this issue.

3. Gilliland's trial counsel did not render ineffective assistance by not objecting to certain evidence.

[19] The final issue in this appeal is whether Gilliland's trial counsel rendered ineffective assistance when he did not object to the Father's trial testimony that other young girls also worked at Gilliland's store. Indiana Evidence Rule 404(b) states that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” According to Gilliland, the Father's testimony “led to a forbidden inference that Gilliland was creating other possible victims by operation of the store.” Appellant's Br. at 16-17.

[20] Had Gilliland's trial counsel objected to this component of the Father's testimony under Rule 404(b), the trial court would not have sustained the objection. See, e.g., Tylor v. State, 929 N.E.2d 912, 918 (Ind. Ct. App. 2010) (“To establish ineffective assistance for counsel's failure to object, a petitioner must show that the trial court would have sustained the objection had it been made ․”), trans. denied. Nothing in the complained-about testimony demonstrates a “wrong” under Rule 404(b). Accordingly, Gilliland did not receive ineffective assistance from his trial counsel on this issue.

Conclusion

[21] For all of these reasons, we affirm the post-conviction court's denial of Gilliland's petition for post-conviction relief.

[22] Affirmed.

FOOTNOTES

1.   Gilliland makes reference to other possible witnesses, but he does not demonstrate what their putative testimony would have been, and he therefore cannot demonstrate on appeal that the post-conviction court's judgment with respect to any such witnesses is contrary to law. See Ind. Appellate Rule 46(A)(8)(a).

Mathias, Judge.

Chief Judge Altice and Judge DeBoer concur. Altice, C.J., and DeBoer, J., concur.