CLARK v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a hung jury, Michael Clark was tried a second time on the charge of Level 1 felony child molesting of M.R., and the jury found him guilty. Following affirmance of his conviction, Clark filed a petition for post-conviction relief (PCR). He asserted that he was denied the effective assistance of trial counsel, in part, due to counsel's failure to object to M.R.’s in-court identification of Clark in a photograph, which had previously been shown to M.R. in what Clark maintains was a suggestive pretrial identification procedure. Finding that the post-conviction court clearly erred when it determined that Clark was not prejudiced by trial counsel's failure to object, we reverse and remand.

Facts & Procedural History

[2] In July 2014, eight-year-old M.R. was living in Otterbein, Indiana, a town of about 1,300 residents, with her mother (Mother), Mother's long-time partner who was like a stepfather to M.R., and M.R.’s younger half-brother. M.R. is legally deaf in one ear and, at the time, was enrolled in some special needs classes at school.

[3] Previously, M.R. had a neighborhood friend named Brooklyn, who was around four years older than M.R. and lived in a home about a block away. The two played outside – but never inside – Brooklyn's home on many occasions. Clark was Brooklyn's mother's boyfriend and lived at the residence. M.R. and Brooklyn drifted apart and quit playing together sometime in 2013.

[4] On the evening of July 19, 2014, M.R. was playing outside, alone, near Brooklyn's residence. She saw a cat that she feared was going to get run over so she picked it up, and the cat scratched M.R. on the chest causing her to bleed. As found on direct appeal:

A neighbor, later identified as forty-two-year old Clark, saw the scratch and invited M.R. inside his home to apply medicine. M.R. initially declined, ․ However, Clark insisted, assuring her it was okay. Once inside, he placed medicine on M.R.’s chest, rubbed her legs near her thighs, and told her she was pretty. Clark then asked M.R. if she wanted to play, to which she agreed, and he took her into his bedroom. Clark laid M.R. on his bed, lifted up her skirt, and performed oral sex on M.R.

Clark v. State, No. 79A02-1511-CR-2064, 2016 WL 5342643, at *1 (Ind. Ct. App. Sept. 23, 2016), trans. denied.

[5] Afterward, M.R. walked quickly home. Upon her arrival, Mother saw that M.R. was crying and immediately recognized that something was wrong. M.R. told Mother what had happened and where. After speaking to M.R. for thirty to sixty minutes, Mother called the police, and Otterbein Police Department Officer Jason Pritchett responded. M.R. described the house and the man to Officer Pritchett. Officer Pritchett recognized the house she was describing and knew that Clark lived there. Officer Pritchett walked with M.R.’s parents down the block, and they pointed out the home, which was Clark's residence. Officer Pritchett observed that Clark's black pick-up truck was parked outside the home. Officer Pritchett left M.R.’s family and contacted the Tippecanoe Sheriff's Department, which had the proper personnel to handle a case of this nature, and the Indiana Department of Child Services (DCS).

[6] Meanwhile, later that night, M.R.’s parents drove M.R. to two hospitals in the area for an exam but neither was qualified to perform a sexual assault examination. In the early morning hours of July 20, they arrived at Peyton Manning's Children's Hospital in Indianapolis, where a sexual assault examination was performed. No injuries were observed, and the examining nurse collected anal, genital, and hand swabs from M.R.

[7] On July 21, 2024, DCS conducted a forensic interview of M.R., which Indiana State Police Detective Gregg Edwards observed. During the interview, M.R. described the outside of the house and included “some distinct characteristics of it.” Transcript Vol. 3 at 167. The next day, Detective Edwards drove by the residence that M.R. had described and confirmed that it matched what she had said. A few days later, a Tippecanoe County DCS assessment worker visited Clark's residence. The inside layout of the home, including the size of the bed and color of the sheets, was consistent with the descriptions M.R. had stated in the interview. In August 2014, Detective Edwards initiated a traffic stop of Clark and obtained two oral swabs from him pursuant to a search warrant. On December 1, 2014, the State charged Clark with Level 1 felony child molesting.

Trial Proceedings

[8] The first jury trial commenced on June 15, 2015. That morning, before the proceedings began, the prosecutor, Jennifer Keifer, and victim's advocate, Echo Harrington, met with M.R. in a conference room. During that meeting, Prosecutor Keifer showed M.R., then age nine, a December 2014 book-in picture of Clark, and M.R. identified him as the man who had molested her. M.R. was also shown two other pictures of Clark, taken four days prior to the incident, and M.R. did not identify Clark in those.

[9] Sometime that day, Clark's trial counsel, Kevin O'Reilly, learned of this meeting and the identification procedure used, which was not a photo array. During trial, the book-in photo was shown to M.R., and she identified the person as “[t]he guy that did the thing to me.” Trial Transcript Vol. 1 at 102.¹ When the State moved to admit the photo, O'Reilly objected, but the trial court overruled the objection and admitted the photo into evidence. M.R. could not identify Clark in the courtroom. The jury was unable to reach a verdict, and the first trial ended in a mistrial.

[10] A second jury trial commenced on August 18, 2015.² Prior to the presentation of evidence and outside the jury's presence, the parties addressed an anticipated evidentiary issue with the trial court, namely the State's intention to offer into evidence during M.R.’s testimony the book-in photograph of Clark, this time as State's Exhibit 3, to establish identity. O'Reilly objected and argued, in part, that the identification procedure that had been used by the prosecutor prior to the first trial was impermissibly suggestive. That is, M.R. had never been shown a photo array, she was only shown pictures of Clark, and the pictures were shown to her right before the first trial and about eleven months after the incident. The State responded that O'Reilly could impeach M.R. about any potential bias or problem with the identification of Clark. It further maintained that Clark's appearance had changed and that the December 2014 book-in picture accurately depicted Clark at the time of the offense.

[11] After the trial court expressed concern about the State “showing the photograph to [M.R.] in the office and then coming in and asking her to identify it in the courtroom,” the State requested, and the court granted, permission to present an offer of proof through the testimony of Harrington, the victim's advocate who was present at the meeting. Trial Transcript Vol. 3 at 5. Harrington testified that Prosecutor Keifer showed M.R. a photograph “and said can you identify the person in this photograph if you know who it is let me know, if you don't that's fine but do you know who is this person,” to which M.R. replied, “yes this is the person who did this to me.” Id. at 6-7. Harrington stated that there was no suggestion made to M.R. about who was pictured in the photograph.

[12] On cross-examination, Harrington acknowledged that M.R. was also shown two other photographs of Clark and that M.R. did not recognize him in either. And she confirmed that the only pictures that were shown to M.R. were of Clark. Ultimately, the court determined that, because of the difference in appearance between State's Exhibit 3 and how Clark currently looked, the photo “can be admitted for the purpose of identification if [M.R.] can identify him from the photo.” Id. at 10.

[13] The trial began with M.R.’s testimony. She testified about being molested by a man at her friend Brooklyn's house, where she had never been inside either before or since this occasion. M.R. described the exterior of the home, noting that a black truck was parked next to the house when the incident occurred. She described aspects of the home's interior, including the bed size and color of the sheets. M.R. also physically described the man who had molested her, as medium height, medium weight, with short black hair, a combined beard and moustache facial hair, tan, and a tattoo on his arm or shoulder.

[14] The State asked M.R. if she saw the man who had molested her in the courtroom, and M.R. replied that she did not. The State then showed her State's Exhibit 3 – the book-in photograph of Clark which had been taken in December 2014. State's Exhibit 3 was a head and shoulders picture of Clark with facial hair and short dark hair. M.R. testified that the man depicted in the photograph “looks like him,” “the guy who did it to me.” Trial Transcript Vol. 3 at 40. Although not yet admitted into evidence, the State requested “permission to publish what's been previously admitted as State's Exhibit 3,” which was granted.³ Id. M.R. then testified that the man in State's Exhibit 3 “looks exactly like” the man who molested her. Id. O'Reilly did not object either to admission of State's Exhibit 3 or to M.R.’s identification testimony.

[15] On cross-examination, O'Reilly asked M.R. if she had seen Brooklyn's dad before, and M.R. thought maybe once. O'Reilly inquired whether Brooklyn's dad looked like “the guy who did this to you” and M.R. replied, “No.” Id. at 49. O'Reilly then asked M.R. about the first time she saw the picture that was State's Exhibit 3:

Q. Okay, and did [Prosecutor Keifer] say anything to you when she showed you the picture?

A. She said, “do you know this guy,” and I said “no.” And I said, “no, yes.”

Q. Okay, you said “no, yes.”

A. Yeah, like I said no to the other pictures, but I found the picture that she showed to us at the (inaudible) and that was the guy.

Q. Okay alright. Did she say anything like “is this the guy that did that to you?”

A. Yes.

Q. That is what she said?

A. Yes.

Id. at 51 (emphases added). Later, the trial court posed some jury questions to M.R., including: “[T]he person in [State's Exhibit 3] ․ Do you know whether he was Brooklyn's step dad or not?” to which she responded, “I didn't know if he was her real dad [ ] or her step dad.” Id. at 61.

[16] Harrington testified that when the prosecutor presented the book-in picture to M.R., she asked M.R. “if she recognized the person in the photograph, if she did that's fine, if she didn't that's fine just let [her] know,” that no suggestion was made to M.R. of who was pictured, and that M.R. said that was “the guy that did this to me.” Id. at 68. Harrington confirmed that M.R. was shown other photographs and did not recognize the person; there was no testimony, however, that the other photos were of Clark.

[17] Officer Pritchett's testimony included that he had been at Clark's residence for ten minutes or so on the evening of July 18 – the day before the incident – and spoke to Clark. Officer Pritchett testified that Clark's black truck, which he had seen Clark drive “many times,” was parked outside the house, and he did not recall seeing any other vehicles there. Id. at 201. Officer Pritchett was not aware of any other adult male who lived at that residence, and he was not aware of any other people at the residence at that time. Officer Pritchett recalled that, when he spoke to Clark on July 18, Clark had scruffy facial hair and looked like he did in State's Exhibit 3. Officer Pritchett testified to previously noticing tattoos on Clark's upper arm.

[18] Detective Edwards stated that, when he obtained the buccal swabs from Clark in August 2014, Clark was driving a black pick-up truck, had “scruff from a beard on his face,” and was “very tan” and “very muscular” Id. at 177-78. Detective Edwards opined that Clark was a little more tan in August 2014 than he appeared in State's Exhibit 3. Both Officer Pritchett and Detective Edwards described that Clark's appearance had changed since the summer of 2014. He now was clean shaven, with longer, “slicked back” hair, and was less tan and not as muscular. Id. at 206.

[19] Among other witnesses, the State called several ISP laboratory employees. Summarized, their testimonies revealed that amylase, a digestive enzyme that can be found in human saliva but is also located in other bodily fluids, was detected in initial testing on M.R.’s underwear and labia swabs. Further DNA analysis did not reveal the presence of male DNA.

[20] Clark called his girlfriend of four years, Karen Seymour, to testify. During her testimony, she identified two pictures of Clark that she had taken July 15, 2014, four days prior to the incident.⁴ They showed Clark, outside, with his two-year old son that he shared with Seymour. Clark was clean-shaven and wearing a baseball cap. The photos were admitted, over the State's objection, as Defendant's Exhibits C and D. Seymour confirmed that the only male who lived at the home was Clark and that she and the children left on Friday July 18 to visit a family member and returned on the evening of July 20.

[21] In addressing the identity element of the offense during closing argument, the State detailed M.R.’s testimony that this occurred at Brooklyn's home, M.R.’s description of the home's exterior and interior, and her physical description of the man who had molested her. The State also argued,

More importantly, [M.R.] told you that this was the man who did it to her. State's [E]xhibit 3. This was the guy. And we know that this guy matches the description that she gave. And we know that this is Michael Clark, the same Michael Clark sitting over there[.]”

Trial Transcript Vol. 4 at 44. O'Reilly, in addition to contrasting M.R.’s descriptions of the house with the testimony of other witnesses and pointing out a lack of DNA or other physical evidence, emphasized that the only identification of Clark was State's Exhibit 3.

[22] The jury convicted Clark as charged, and the court imposed a thirty-five-year sentence with thirty years executed in the Indiana Department of Correction. Clark unsuccessfully appealed, asserting that his sentence was inappropriate.

Post Conviction Proceedings

[23] On November 1, 2016, Clark filed a pro se petition for PCR. Following the appointment of counsel, Clark filed two amended petitions, the first in June 2019 and another on April 2, 2024. Relevant here, Clark alleged that O'Reilly performed deficiently when he did not object at trial to the admission of M.R.’s identification testimony that State's Exhibit 3 “looks exactly like him” and was “the guy who did it to me.” PCR Appendix at 40. Clark urged that to seek the exclusion of the photo in a pretrial hearing on the basis that the identification procedure was unduly suggestive and not thereafter object at trial to M.R.’s identification of Clark based on that picture was deficient performance and that Clark was prejudiced by it.⁵

[24] A PCR evidentiary hearing was held on September 4, 2024. O'Reilly, a current prosecutor and former defense attorney who had been practicing law since 1997, testified about the hearing that took place before the second trial, at which he argued that the prosecutor's identification procedure was unduly suggestive. O'Reilly acknowledged that he did not contemporaneously object during trial. He explained that, given trial court's pretrial ruling that it would let the photograph in if M.R. could identify it, “I think we all kind of assumed” it was going to be admitted – and, to that point, the State asked for permission to publish “what was previously admitted as State's Exhibit 3,” although it had not been offered or admitted. PCR Transcript at 14-15. Because the photo was never actually offered into evidence through M.R., O'Reilly further claimed “there was not an opportunity for me to contemporaneously object to it.” Id. at 15. He understood that he had made his record before trial with regard to admission of the photo and believed he did not need to make a further objection when M.R. began testifying about her identification of Clark in the photo.

[25] Clark also presented the testimony of appellate counsel, Steven Knecht. Knecht was “disappointed” when he saw in the transcript that a contemporaneous objection had not been made during M.R.’s identification testimony, and he “absolutely” would have raised the issue of a suggestive identification on appeal if O'Reilly had preserved the issue. Id. at 29. He explained that he decided not to raise the issue because establishing fundamental error is “a near impossible standard to meet.” Id. at 28.

[26] On January 6, 2025, the post-conviction court issued written findings of fact and conclusions of law denying PCR. As is relevant here, the court found that there was legal authority to support Clark's argument that use of a single photograph for identification instead of a multiple photograph array is unduly suggestive, and it determined that trial counsel performed deficiently in failing to make a contemporaneous objection to preserve this issue for direct appeal. PCR Appendix at 86. The court explained that it had only made a preliminary ruling that State's Exhibit 3 was admissible and that, even though the State appeared not to have formally sought to admit the exhibit during trial, O'Reilly had “several opportunities” to object but did not – such as when the State asked M.R. about State's Exhibit 3, when the State indicated that the exhibit had already been admitted, or when the State moved to publish it. Id.

[27] The post-conviction court determined, however, that Clark had not shown that he was prejudiced by the failure to object. The court reasoned that, even if the photograph identification was impermissibly suggestive, “there was other evidence of identification[.]” Id. at 88. Concluding that the cumulative effect of any potential errors did not deprive Clark of a fair trial, the post-conviction court denied Clark's petition. Clark now appeals. Additional facts will be supplied as necessary.

Standard of Review

[28] In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Absher v. State, 162 N.E.2d 1141, 1147 (Ind. Ct. App. 2021). The reviewing court will not reverse the judgment unless the petitioner shows that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a post-conviction court's findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Taylor v. State, 929 N.E.2d 912, 917 (Ind. Ct. App. 2010), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Id. We accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id.

[29] We review ineffective assistance of counsel claims under the two-part test provided by Strickland v. Washington, 466 U.S. 668 (1984). Absher, 162 N.E.3d at 1148. To prevail, a petitioner must demonstrate both that counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Id. Failure to satisfy either prong will cause the claim to fail. McCallister v. State, 268 N.E.3d 1275, 1280 (Ind. Ct. App. 2025), trans. denied. If it is easier to dispose of an ineffectiveness claim on lack of prejudice, that course should be followed. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

[30] Counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Taylor, 929 N.E.2d at 918. When an ineffectiveness claim is predicated on counsel's failure to object, the petitioner must show that the trial court would have sustained the objection had it been made. See Humphrey, 73 N.E.3d at 684 (finding deficient performance for counsel's failure to make hearsay objection where, “[h]ad proper objection been raised, trial court would have been required to sustain it”); Curtis v. State, 905 N.E.2d 410, 418 (Ind. Ct. App. 2009) (recognizing that failure to object to admissible evidence does not constitute deficient performance), trans. denied.

[31] To meet the test for prejudice, the petitioner “need only show ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Absher, 162 N.E.3d at 1148. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Discussion & Decision

[32] Clark contends that O'Reilly provided ineffective assistance, in part, by failing to make a contemporaneous objection to M.R.’s identification of Clark in State's Exhibit 3. In this case, the post-conviction court determined that O'Reilly's performance was deficient, and the State does not contend otherwise, arguing only that Clark was not prejudiced by counsel's failure to object. With this posture, we turn directly to the post-conviction court's determination that Clark did not establish prejudice.

[33] The post-conviction court explained that Clark had not met his burden to show a reasonable probability of a different result “because there was other evidence of identification.” PCR Appendix at 88. That, however, is not the proper inquiry. Rather, the inquiry is whether 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. Humphrey, 73 N.E.3d at 682.

[34] We agree with Clark that “[t]he primary issue at trial was identification.” Appellant's Brief at 23. Here, M.R. testified that the incident occurred at her friend Brooklyn's house – which the evidence established was Clark's house – a location that M.R. was familiar with, having previously played outside of Brooklyn's home on various occasions. M.R. described aspects of both the exterior and interior of the house, which, aside from minor debatable color discrepancies, matched other evidence presented at trial. M.R. correctly described the general layout of the inside of the home even though she had never been inside it before or since this occasion. Clark was the only man who lived there, and he drove a black truck that was parked outside on the evening in question. On the date of the incident, the rest of Clark's family was out of town. M.R. provided a physical description of her assailant, first to police and then at trial: medium build and height, muscular, tan, dark hair, some facial hair, and an arm tattoo.

[35] All of that being said, the singular piece of evidence that directly identified Clark as the assailant was M.R.’s testimony that the person in State's Exhibit 3 was the man who molested her. She could not identify him in the courtroom, and her testimony reflected that she was unsure whether the person who committed the act was Brooklyn's stepfather, father, or neither. There was no DNA evidence or inculpatory statement tying Clark to the crime. M.R.’s testimony identifying the person in State's Exhibit 3 was the linchpin of the State's evidence establishing Clark as the perpetrator. The State emphasized M.R.’s photo identification of Clark twice in closing argument: “[S]he told you this is the man who did it to her. State's [E]xhibit 3. This was the guy[,]” and, later, “We have this photograph of Michael Clark and M.R. told you that this was the guy who did it.” Transcript Vol. 4 at 44, 65.

[36] It is irrelevant whether the evidence was sufficient to convict Clark without this challenged evidence. The question we must answer is whether Clark showed, by a preponderance of the evidence, a reasonable probability that, but for counsel's failure to object, the result of the proceeding would have been different. While we cannot say that M.R.’s identification testimony was determinative, we are confident that it was pivotal. We conclude that the record demonstrates that Clark was prejudiced by counsel's failure to object at trial to M.R.’s testimony identifying Clark in State's Exhibit 3, which had been tainted by what Clark had earlier asserted was an impermissibly suggestive identification procedure. See e.g., Humphrey, 73 N.E.3d at 686, 689 (finding that defendant who closely fit the description of the perpetrator in murder case established prejudice where trial counsel failed to object to unsworn hearsay testimony that “was the only evidence identifying Humphrey as the shooter” because, due to counsel's errors the jury was permitted to consider it as substantive evidence).

[37] Concluding that Clark has established grounds for relief by a preponderance of the evidence, we reverse the judgment of the post-conviction court and remand this cause for a new trial.⁶

[38] Judgment reversed and remanded.

FOOTNOTES

1.   To facilitate ease of locating record document pages, we will refer to the electronic pagination in the PDFs filed with this court, as opposed to the original pagination of the documents, which, at that time, were consecutively numbered through multiple volumes.

2.   Both O'Reilly and Prosecutor Keifer continued as counsel in the second trial.

3.   The trial court advised the jury that it was taking judicial notice of the fact that State's Exhibit 3 was taken on December 3, 2014.

4.   These were the two other pictures that had been shown by the prosecutor to M.R. prior to the first trial.

5.   The second allegation of ineffective assistance was trial counsel's failure to present evidence that M.R. was shown but did not identify Clark in two other pictures shown to her by the prosecutor in that same meeting.

6.   Clark also claimed that trial counsel was ineffective for failing to present evidence that the other pictures the prosecutor showed to M.R. before the first trial were of Clark and that she did not identify him in those pictures, which were taken only days before the alleged incident. We need not reach this issue, but we observe that it further undermines our confidence in the outcome of Clark's trial.

Altice, Judge.

Pyle, J. and DeBoer, J., concur.