VANPATTEN v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial and a direct appeal, Gerald VanPatten stood convicted of one count of Class A felony child molesting. VanPatten, acting pro se, filed a petition seeking post-conviction relief, alleging his two trial counsel were ineffective for failing to object to a child witness’ competency to testify. The post-conviction court found no prejudice from any alleged deficient performance and denied the petition. VanPatten appeals the denial, arguing the post-conviction court clearly erred. We affirm.

Facts and Procedural History

[2] The facts of this case were set forth by the Supreme Court in VanPatten's direct appeal:

Gerald VanPatten is the biological father of S.D. During the summer of 2009, S.D.’s close friend, E.R., would often spend the night at S.D.’s house. The two girls, then around six years old, would sleep in the same bed. One morning in August of that summer, after a similar sleep-over, E.R. and S.D. told S.D.’s mother that VanPatten had molested them. E.R. ran back to her home and S.D.’s mother contacted her pediatrician, who directed her to the Department of Child Services.

S.D.’s mother took S.D. to a DCS office to be interviewed by a caseworker. DCS also contacted E.R.’s family and requested that E.R. be brought in for an interview as well. During the course of the interviews (which were videotaped), both girls stated that VanPatten had molested them—E.R. the previous evening and S.D. on prior occasions.

Both girls were then taken to the Fort Wayne Sexual Assault Treatment Center where they were examined by Joyce Moss, a forensic nurse examiner. Moss collected several biological samples from E.R. ․ [1]

On November 17, 2009, the State charged VanPatten with three counts of class A felony child molesting and one count of class C felony child molesting. Two of the class A felony counts, Counts I and II, related to S.D., and one, Count III, related to E.R. Count IV, the class C felony count, related to S.D.

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At trial, E.R. testified in a manner generally consistent with the interviews she gave to DCS and Moss, alleging that VanPatten molested her on multiple occasions while she was spending the night with S.D. ․

S.D., however, recanted her previous allegations․ The State then called Moss to testify to what E.R. and S.D. told her during their forensic examinations, seeking to apply the hearsay exception found in Indiana Rule of Evidence 803(4) for statements made for the purposes of medical diagnosis or treatment. VanPatten objected, arguing that there was an insufficient foundation to support the use of the exception. The trial court overruled his objection and allowed Moss's testimony as substantive evidence.

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The jury acquitted VanPatten of Count I, but convicted him of the remaining three charges․

VanPatten, 986 N.E.2d at 257–59 (record citations omitted).

[3] VanPatten raised several issues on appeal. One issue was whether the admission of Moss’ testimony was improper. The Supreme Court held it was an abuse of the trial court's discretion to admit Moss’ testimony under the hearsay exception found in Evidence Rule 803(4), determined without Moss’ testimony the evidence was insufficient to support VanPatten's convictions for Counts II and IV, and reversed and remanded for a new trial on those counts.² Id. at 267–68. VanPatten's conviction for Count III—molesting E.R.—and the corresponding forty-year sentence remained.

[4] VanPatten, acting pro se, filed a petition for post-conviction relief alleging he received ineffective assistance from his trial counsel, claiming they should have objected to E.R.’s testimony “on the ground that the seven-year-old was incompetent to testify as it had not been demonstrated that she understood the difference between the truth and a lie or that she knew what a true statement actually is.” PCR App. Vol. 2 at 112. VanPatten alleged that “had trial counsel objected to the testimony of E.R. on the ground that she was incompetent to testify, there would have been insufficient evidence remaining from which to sustain [his] conviction, resulting in a different outcome on [his] appeal.” Id. at 114.

[5] The post-conviction court ordered VanPatten to submit his case by affidavit. VanPatten did not file affidavits, but he did ask the post-conviction court to take judicial notice of the trial and appellate records and submitted proposed findings and conclusions. The post-conviction court “accepted these proposed findings of fact and conclusions of law as [VanPatten's] submission of his case by affidavit[.]” Appellant's App. Vol. 2 at 10. The State filed an answer and its own proposed findings and conclusions.

[6] The post-conviction court denied VanPatten's petition, concluding:

2. [VanPatten] assumes that, had trial counsel objected to E.R.’s testimony on the ground that she had not been shown to be competent to testify, the objection would have been sustained, E.R.’s testimony would have been excluded, and that would have been the end of it․

3. [VanPatten's] assumption on this point is incorrect. The questions to which [VanPatten] refers would have been needed to lay a proper foundation for the child witness's testimony. The purpose of an objection to evidence on the basis of lack of a proper foundation is to demand that the party offering the evidence should lay the proper foundation if possible[.] ․ [VanPatten] has submitted no evidence tending to establish—and it cannot be presumed—that the State would have failed to lay the proper foundation for E.R.’s testimony had such an objection been raised․

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5. ․ Abundant evidence supported an inference that E.R. knew the difference between truth and falsehood, and was careful to tell the truth and to refrain from telling falsehoods. Any error in failing to establish this inference before rather than during her testimony was harmless.

Id. at 19–21 (internal citations omitted).

The post-conviction court's order denying relief is not clearly erroneous.

[7] Post-conviction proceedings are civil proceedings in which a petitioner may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied. The scope of potential post-conviction relief is limited to issues unknown at trial or unavailable on direct appeal. See Gibson, 133 N.E.3d at 681.

[8] Indiana Post-Conviction Rule 1(6) requires the post-conviction court to make findings of fact and conclusions of law supporting its judgment. We will reverse the findings and judgment “only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). We do not reweigh evidence or judge witness credibility. See Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (explaining the post-conviction court is the “sole judge of the evidence and the credibility of the witnesses”) (citation omitted), cert. denied. When reviewing an order denying post-conviction relief, we accept the findings of fact unless they are clearly erroneous, but we give no deference to the court's legal conclusions. Id. Where, as here, the petitioner is appealing 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.” Gibson, 133 N.E.3d at 681.

[9] VanPatten's petition for post-conviction relief alleges ineffective assistance of trial counsel. The Sixth Amendment to the United States Constitution confers “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)). As the United States Supreme Court explained in Strickland: “The benchmark for judging any claim of ineffectiveness [is] 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.

[10] We begin with a strong presumption that counsel rendered adequate legal assistance. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied. To prevail on an ineffective assistance of counsel claim, the petitioner “must show both deficient performance and resulting prejudice.” Allen, 749 N.E.2d at 1166. Deficient performance is representation that fell below an objective standard of reasonableness. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687–88). Prejudice exists where 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. (citing Strickland, 466 U.S. at 694). “[I]f we can dispose of a claim of ineffective assistance of counsel by analyzing the prejudice prong alone, we will do so.” Burnell v. State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018).

[11] VanPatten bases his ineffective assistance claim on counsel's failure to object to E.R.’s testimony because she had not been shown competent to testify. “[T]o prevail on a claim of ineffective assistance due to the failure to object, the defendant must show an objection would have been sustained if made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007).

[12] A child under ten years old was formerly presumed to be incompetent to testify, but the statute setting forth the presumption was repealed in 1990. Burrell v. State, 701 N.E.2d 582, 585 (Ind. Ct. App. 1998). The Indiana Rules of Evidence—first adopted in 1994—now govern and state the general rule that “[e]very person is competent to be a witness except as otherwise provided in [the Indiana Evidence] rules or by statute.” Ind. Evidence Rule 601. But the fact Rule 601 does not “presumptively exclude children does not prohibit special inquiry into their competency prior to testifying when the issue is raised by a defendant.” Burrell, 701 N.E.2d at 585. When a child witness is challenged, it is within the sound discretion of the trial court to determine whether she is competent to testify based on the judge's observation of the child's demeanor and responses to questions posed to her by counsel and the court. Harrington v. State, 755 N.E.2d 1176, 1180–81 (Ind. Ct. App. 2001). Competency can be established by demonstrating the child (1) understands the difference between telling a lie and telling the truth; (2) knows she is under a compulsion to tell the truth; and (3) knows what a true statement is. Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct. App. 2007), trans. denied. “To be qualified to testify, a child need not be a model witness, have an infallible memory, or refrain from making inconsistent statements.” Casselman v. State, 582 N.E.2d 432, 435 (Ind. Ct. App. 1991).

[13] In this case, the State called seven-year-old E.R. as a witness. The trial court administered the oath as follows:

Court: What's your name?

A: [E.R.]

Court: [E.R.], do you promise that everything you're going to say to us today will be the truth?

A: Um-hum. (indicating affirmative response.)

Court: And the whole truth?

A: Yes.

Court: And nothing else other than the truth?

A: Yes.

Court: Okay. Thank you.

Trial Tr. Vol. 5 at 194. The State then began questioning E.R., asking her name, her age, her grade, and other basic information before stating, “What I want to do is talk a little bit about your family ․ And then I want to talk about something that happened a couple of summers ago.” Id. at 195–96. VanPatten did not object to E.R.’s testimony based on incompetence at this point or any other.

[14] We agree with VanPatten that the oath administered by the trial court and the initial questioning by the State did not clearly establish E.R. understood the difference between the truth and a lie or that she was required to tell the truth in her testimony. But VanPatten wrongly assumes that if his counsel had objected, the trial court would have “had to” find E.R. incompetent to testify and exclude her as a witness because of it. See Appellant's App. Vol. 2 at 138 (VanPatten's proposed findings of fact and conclusions of law).³ The purpose of an objection is to “give the trial court a chance to avoid or correct the harmful error[.]” Wilder v. State, 91 N.E.3d 1016, 1022 (Ind. Ct. App. 2018). In this case, had VanPatten's counsel objected, the trial court would have been able to avoid or correct any error by giving the State the opportunity to demonstrate E.R.’s competence as a witness. There is no reason to believe the State would not have been able to do so and therefore no reason to believe the outcome of VanPatten's trial would have been different had counsel objected. The post-conviction court—after quoting extensively from E.R.’s testimony—found that “ample evidence supported an inference that E.R. was an intelligent girl who did know the difference between the truth and a lie, did know what a true statement is, and did know that it was necessary for her to tell the truth.” Appellant's App. Vol. 2 at 20. The post-conviction court gave as examples the times E.R. replied, “I forgot” or “I don't remember” when she did not know the answer to a question. Id.; cf. Russell v. State, 540 N.E.2d 1222, 1225 (Ind. 1989) (holding trial court's decision to allow a child to testify without adequately determining whether the child knew the difference between the truth and a lie was harmless where the child demonstrated during subsequent questioning that she in fact understood the difference).

[15] Moreover, E.R.’s testimony was not the only evidence of VanPatten's guilt, as there was also physical evidence implicating VanPatten. Clothing and biological samples were taken from E.R. during the forensic examination. A forensic scientist testified that VanPatten could not be excluded from the mixture of biological profiles found on swabs from E.R.’s buttocks, inner thighs, underwear, and nightgown. Trial Tr. Vol. 7 at 29–35. In short, even if counsel had objected and E.R.’s testimony been excluded, VanPatten has failed to show a reasonable probability the result of the proceeding would have been different.

[16] The post-conviction court concluded VanPatten did not receive ineffective assistance of trial counsel, in part because his counsel's alleged failures did not result in prejudice. To prevail on his claim the post-conviction court's conclusion was clearly erroneous, VanPatten “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Gibson, 133 N.E.3d at 681. He has failed to meet this “rigorous standard of review.” DeWitt v. State, 755 N.E.2d 167, 169–70 (Ind. 2001).

Conclusion

[17] The post-conviction court's denial of VanPatten's petition for relief is not clearly erroneous.

[18] Affirmed.

FOOTNOTES

1.   The analysis of these samples “showed a mixture of biological profiles from which VanPatten could not be excluded” and a number of them included DNA from a male. VanPatten v. State, 986 N.E.2d 255, 258 n.1 (Ind. 2013).

2.   The State instead moved to dismiss Counts II and IV and VanPatten was not retried.

3.   VanPatten states “it was the court—not the State—that had a responsibility to establish that seven-year-old E.R. was competent to testify.” Appellant's Br. at 14. He seems to argue that because the trial court did not ask E.R. questions to establish her competency before the State began questioning her, the opportunity to further explore E.R.’s competence was foreclosed and it “would have been error for the court to permit E.R. to testify” had his counsel objected. Id. VanPatten misunderstands the trial court's role. The court and counsel can ask questions to determine a child's competency. See Martin v. State, 244 N.E.2d 100, 103 (Ind. 1969) (“There is no reason in law or logic why the trial court should consider only the answers to its own questions. The nature of the question is determinative, not the author of the question.”); see, e.g., Harrington, 755 N.E.2d at 1181 (finding no abuse of discretion in trial court's determination child was competent to testify when the State reminded the child he had promised to the tell the truth, questioned him about his general understanding of the truth and lying and the consequences of lying, and asked for examples of true statements and lies).

Kenworthy, Judge.

Tavitas, C.J., and Bailey, J., concur.