Petition for Writ of Certiorari — Donald G. Karr, Jr., Petitioner v. Indiana

APPENDIX A

In the

Indiana Supreme Court

Donald G. Karr, Jr.,

Appellant(s),

v.

State Of Indiana,

Appellee(s).

Court of Appeals Case No.

29A02-1707-CR-01502

Trial Court Case No.

29D03-1505-F6-4047

[DATE STAMP]

FILED

4/24/2018, 2:34 pm

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

Order

This matter has come before the Indiana

Supreme Court on a petition to transfer jurisdiction,

filed pursuant to Indiana Appellate Rules 56(B) and

A-1

57, following the issuance of a decision by the Court of

Appeals. The Court has reviewed the decision of the

Court of Appeals, and the submitted record on appeal,

all briefs filed in the Court of Appeals, and all

materials filed in connection with the request to

transfer jurisdiction have been made available to the

Court for review. Each participating member has had

the opportunity to voice that Justice’s views on the

case in conference with the other Justices, and each

participating member of the Court has voted on the

petition.

Being duly advised, the Court DENIES the

petition to transfer.

Done at Indianapolis, Indiana, on 4/24/2018.

/s/

Loretta H. Rush

Chief Justice of Indiana

All Justices concur.

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APPENDIX B

Court of Appeals of Indiana

January 31, 2018, Decided; January 31, 2018, Filed

Court of Appeals Case No. 29A02-1707-CR-1502

Donald G. Karr, Jr.,

Appellant-Defendant/Petitioner,

v.

State of Indiana,

Appellee-Plaintiff/Respondent.

Notice: PURSUANT TO INDIANA APPELLATE

RULE 65(D), THIS MEMORANDUM DECISION

SHALL NOT BE REGARDED AS PRECEDENT OR

CITED BEFORE ANY COURT EXCEPT FOR THE

PURPOSE OF ESTABLISHING THE DEFENSE OF

RES JUDICATA, COLLATERAL ESTOPPEL, OR

THE LAW OF THE CASE.

Counsel:

ATTORNEY FOR APPELLANT: Jane H. Ruemmele,

Hayes Ruemmele, LLC Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr.,

Attorney General of Indiana; James B. Martin, Deputy

Attorney General, Indianapolis, Indiana.

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Judges: Kirsch, Judge. Bailey, J., and Pyle, J., concur.

Opinion by: Kirsch

Opinion

MEMORANDUM DECISION

Kirsch, Judge.

P1 Following a jury trial, Donald G. Karr, Jr. ("Karr")

was convicted of Level 6 felony domestic battery

committed in the presence of a child less than sixteen

years of age1 and two counts of Level 3 felony rape.2

The trial court sentenced Karr to two and one-half

years for the battery conviction. For the two rape

convictions, the trial court imposed concurrent fifteenyear sentences, with five years suspended on each, and

ordered the rape sentences to be served consecutive to

the battery sentence, for an aggregate executed

sentence of twelve and one-half years. Karr filed a

motion for a new trial, alleging ineffective assistance

of trial counsel, and the trial court denied his motion.

Karr appealed, [*2] but then sought a remand to the

trial court in order to pursue post-conviction relief. We

granted his request and dismissed his appeal without

prejudice pursuant to Davis v. State, 267 Ind. 152, 368

N.E.2d 1149 (1977) and Hatton v. State, 626 N.E.2d

442 (Ind. 1993), allowing Karr to later file a new notice

1

See Ind. Code § 35-42-2-1.3.

2

See Ind. Code § 35-42-4-1(a)(1).

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of appeal and raise both the issues that he would have

raised in the original appeal along with new issues

created by the post-conviction court's ruling on the

petition for post-conviction relief.3 Appellant's App.

Vol. II at 33.

P2 Karr filed a petition for post-conviction relief,

alleging claims of ineffective assistance of trial

counsel, and the trial court denied Karr's petition,

finding that it was barred by res judicata. Karr

initiated this consolidated appeal and presents the

following reordered and restated issues:

I. Whether sufficient evidence supports Karr's

domestic battery conviction and two rape

convictions;

II. Whether the trial court abused its discretion

in sentencing Karr;

3

This procedure is referred to by Indiana courts as a Davis/Hatton

procedure and involves a termination or suspension of a direct

appeal already initiated, upon appellate counsel's motion for

remand or stay, to allow a post-conviction relief petition to be

pursued in the trial court. Talley v. State, 51 N.E.3d 300, 302 (Ind.

Ct. App. 2016), trans. denied; see also Ind. Appellate Rule 37(A)

("At any time after the Court on Appeal obtains jurisdiction, any

party may file a motion requesting that the appeal be dismissed

without prejudice or temporarily stayed and the case remanded to

the trial court . . . for further proceedings. The motion must be

verified and demonstrate that remand will promote judicial

economy or is otherwise necessary for the administration of

justice."). The procedure is useful where a defendant needs to

develop an evidentiary record to support a claim of ineffective

assistance of trial counsel. Talley, 51 N.E.3d at 303.

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III. Whether the trial court erred when it found

that Karr received effective assistance from

trial counsel and, therefore, denied Karr's

request for a new trial; and

IV. Whether the post-conviction court erred

when, by summary denial, it denied Karr's

petition [*3] for post-conviction relief on the

basis that his claims of ineffective assistance of

counsel were barred by res judicata.

P3 We affirm.

Facts and Procedural History

P4 In May 2015, Karr and his then-girlfriend, A.P.,

along with her three children ("Children"), ages six,

five, and three years old, were living in a residence

that Karr and A.P. leased. Karr and A.P. shared a

bedroom that was located off the same hallway as a

bedroom that the three Children shared. On the

evening of May 5, 2015, A.P. was home with the

Children, and she put them to bed around 8:00 p.m. As

A.P. left the Children's room and closed the door

behind her, Karr came home from work. He was

"agitated" and asked her what she was doing. Tr. Vol.

II at 35. He walked from the front door to the back

door and looked outside, and he accused her of having

someone in the house before he got home. She told him

that was not the case, and he became angry and took

her phone from her as she sat on the living room

couch, which according to A.P. was positioned right

next to the opening to the hallway, leading to the

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Children's bedroom. Karr believed that A.P. was lying,

and his voice got louder as he accused her. He asked

her "to [*4] deny it again[,]" and when she did, he hit

her across the cheek with an open hand. Id. at 38. He

pulled her off the couch by her hair, and she fell to the

floor. Karr then told A.P. to get up, saying that she

was going to "suck his dick" every day and every night.

Id. at 39.

P5 At some point, A.P.'s oldest child ("Child") came out

of her bedroom, and as she opened the door, Karr went

into the hallway and confronted her. Child said she

needed to go to the bathroom, and Karr told her "no"

and to go back to bed. A.P. heard Child begin to cry as

she went back into the bedroom, and Karr closed the

door. He returned to A.P., who had gotten herself up

from the floor and was on the couch. He unbuckled his

pants, and A.P. put her feet up "and tried to kick him

away" from her. Id. at 40. At that point, A.P. began to

have abdominal pains from a preexisting ovarian cyst

condition, so A.P. told Karr that she needed to call her

doctor.

P6 He initially refused, but he eventually agreed to let

her call her doctor or go to the emergency room. After

A.P. vomited in the bathroom, Karr woke the Children

and told them they were all leaving and taking A.P. to

the hospital. At A.P.'s request, they dropped the

Children off at A.P.'s [*5] parents' home on the way.

When A.P. was asked at trial if, when they dropped off

the Children at her parents' house, she had told her

parents that Karr had beaten her and pulled her hair,

A.P. explained that she did not, because at that time

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her "main focus was getting the kids away from [Karr]

and . . . getting them someplace safe." Id. at 42. She

feared that saying anything would put herself and the

Children in "more danger." Id. Once at the hospital,

she and Karr walked to the registration area, and A.P.

suggested to him that he go and park the car, and

when she "felt he was out of earshot," she told the

nurse, "I need you to get a police officer because he's

hitting me." Id. at 43- 44. Karr returned, and they sat

together in an examination room, but then the nurse

told Karr that A.P. needed an ultrasound and he could

not go, so she left and went to an ultrasound room,

where Officer Craig Denison ("Officer Denison") of the

Noblesville Police Department ("NPD") was waiting for

her.

P7 A.P. told Officer Denison what had happened, and

he took some pictures. She also removed from her

pocket and showed Officer Denison hairs that had

come loose and fallen out of her head when she was on

the couch and Karr was [*6] telling the Child to go

back to bed. Officer Denison advised A.P. that he did

not believe he could make an arrest of Karr at that

time because there was no immediate bleeding or

bruising, but he offered to speak to Karr and to drive

A.P. home or wherever she needed to go. Believing that

Karr had calmed, and deciding "it would be better to

just go home and . . . deal with everything the next

morning[,]" A.P. went back home with Karr. Id. at 4849. A.P. called her parents to let them know "what was

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going on" with her trip to the emergency room,4 and

because it was so late, after midnight, the Children

stayed with A.P.'s parents. Id. at 49.

P8 When A.P. and Karr arrived home, she went into

the bathroom to get ready for bed and put on pajamas,

and he went to the kitchen. He became angry that she

had purchased "the wrong orange juice" and told her

that she "needed to be doing what he told [her] to do."

Id. at 51. He hit her across her face, and she fell on the

hallway floor. Karr took off his pants and underwear

and told her she was going to "suck his dick." Id. at 52.

He forced himself into her mouth, but at some point

stopped and "lectured" her about the rules he was

setting for her. Id. at 53. Eventually, Karr said he

wanted to go to [*7] bed, so A.P. got into bed. When he

came into bed, he said he needed to masturbate.

According to A.P., he searched his phone for a

pornographic video and told her to put her hand on his

penis. She complied because "every time I told him

no[,] I was either hit or forced to do something

anyway[.]" Id. at 54. He later asked her to perform oral

sex, which she did "[o]ut of fear of what would happen

if I said no." Id. During this time, she saw a light

behind her; she turned her head and saw it was his

cell phone "so I assumed he was taking a video." Id. at

55. Karr ejaculated on A.P., and both of them fell

asleep.

4

We note that, after talking to Officer Denison, but before leaving

the hospital, A.P. received an ultrasound associated with the

cysts.

A-9

P9 Karr went to work the next day, and, after she

showered, A.P. went to a doctor's appointment. At her

appointment, the doctor had already received record of

A.P.'s emergency room visit. The doctor asked A.P. to

tell her "what had happened," referring to the

situation with Karr. Officer Michael Boudreau

("Officer Boudreau") of NPD came and met A.P. at the

doctor's office, and at A.P.'s request, an advocate from

Prevail, a victim's assistance agency, also met with

A.P. to help her prepare a request for a protective

order. A.P did not go home after the appointment

because she was admitted to the hospital [*8] for pain

associated with the ovarian cysts. A.P. called her

parents and asked her mother to take the Children

"someplace away from the house" and asked her father

to pick up her car from the hospital. Id. at 58.

Meanwhile, Karr and A.P. exchanged some casual text

messages throughout the day. However, Karr became

angry when A.P. stopped responding to him. Officer

Boudreau prepared a probable cause affidavit, and

Karr was arrested during a traffic stop.

P10 Before being released from the hospital, A.P. met

with a forensic nurse, who examined her, and took

pictures of areas where Karr had hit A.P. and pulled

her hair. After being discharged, A.P. met with

Detective Michael Haskett ("Detective Haskett") of

NPD. Within the next week or two, A.P. and her

Children were interviewed by Indiana Department of

Child Services ("DCS").

P11 On May 28, 2015, the State filed an amended

information charging Karr with Counts 1 through 5, as

A-10

follows: Count 1, Level 6 felony domestic battery;

Count 2, Level 3 felony rape; Count 3, Level 3 felony

rape; Count 4, Level 6 felony strangulation; and Count

5, Level 6 felony intimidation. A jury trial was

conducted on the charges in August 2016.

P12 A.P. was the first witness. [*9] She described the

layout of the home where she, Karr, and the Children

resided. She said that the bedroom she shared with

Karr and the Children's bedroom were both located off

"a very small hallway," were "maybe six feet apart" in

the hall, and, generally, she would be able to hear the

Children talking in their room after she put them to

bed in the evenings. Tr. Vol. II at 34. As to the night in

question, she described that Karr believed she had

secretly had someone else in the house right before he

got home and sent the person out the front door as he

came in the back. He became very angry at her, and,

after he first hit her, he "continued to hit [her] several

times again, both with an open hand and with a closed

fist" on both sides of her face and on her head. Id. at

39. She said that when he pulled her off the couch by

her hair, "It hurt a lot. I could feel and hear hair

ripping out of my head." Id. A.P. said that she was on

the floor, kneeling in front of the couch, when her

oldest Child came out of her room, and Karr went and

told Child to go back to bed. A.P. described that Child's

voice sounded "timid and a little scared." Id. at 40. A.P.

explained that she went home from the hospital later

that [*10] night with Karr because "I was looking for

some kind of protection and if he wasn't going to be

arrested at that point then I felt that my only other

course of action would be to file for a protective order

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and I wasn't going to be able to do that until the next

morning[.]" Id. at 49.

P13 A.P. stated that the trip home from the hospital

was uneventful, but that, when they got home, Karr

became angry that she got the wrong juice and

demanded that she perform oral sex on him. When she

tried to avoid it, he threatened to carve "C-U-N-T" into

her forehead. Id. at 52. She described that she was

crying and choking and gagging when he forced his

penis in her mouth. Id.

P14 On cross examination, defense counsel asked A.P.

why she went home with Karr that night from the

hospital after he had beaten her and why she did not

leave once he fell asleep. She explained that she went

home with him so that he would not know she had told

her story at the hospital or to a police officer and that

she planned to seek a protective order the next day.

She said she did not leave after he fell asleep because

she was afraid of waking him or of him following her.

She did not go to a neighbor's house because she did

not know her [*11] neighbors. She was asked, and

denied, that at any time she removed her hair from

either the shower drain or her hair brush.

P15 Among other witnesses, Officers Denison and

Boudreau also testified for the State. Officer Denison

testified to meeting with A.P. at the hospital when she

was in the E.R. He did not observe any injuries to her

at that time, but noted that "sometimes bruises,

scratches, abrasions, swelling doesn't show up until a

later date." Id. at 154. Officer Denison characterized

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her demeanor as serious, but she was "not frantic or

crying." Id. at 147. According to Officer Denison, A.P.

did not want him to speak with Karr or her Children,

telling him that she "didn't believe that her kids had

witnessed any of the actual assault that occurred," and

"it was just the verbal part that they had witnessed or

heard." Id. at 150. He stated that A.P. seemed fearful

or had concerns about possessing the Prevail

documents that he had given her, which he found was

not unusual in cases of domestic abuse. A.P. told

Officer Denison she planned to obtain a protective

order the next day.

P16 Officer Boudreau testified that he was dispatched

to the hospital on May 6, 2015, to take a report of a

sexual assault. A Prevail [*12] representative was also

present during his interview with A.P. He did not

observe any injuries to A.P. and did not collect

evidence from her. He was aware of a sexual assault

examination being conducted later in the day, and the

following day, Officer Boudreau wrote a probable cause

affidavit for Karr's arrest.

P17 Forensic nurse examiner Nakia Bowens

("Bowens") testified that she examined A.P. on May 7,

2015. She described A.P. as calm at times, but

"tearful" at other times. Id. at 182. She observed

"redness and tenderness" in A.P.'s scalp area and

tenderness on her jawbone and redness to her chin,

and an injury to the inside of her lip. Id. at 185-86,

190-91, 203. She also had petechiae, or "small red dots

that indicate blood has burst," on the roof of her

mouth. Id. at 191. One of the causes of petechiae is

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blunt force trauma. Id. at 191-92. Bowens testified

that a penis striking the roof of the mouth could cause

petechiae. Pictures taken of A.P. by Bowens were

admitted into evidence.

P18 Detective Haskett met with A.P. on May 8 at the

police station to get a formal statement from her. He

described her demeanor as "collected and matter-offact," but tearful at times. Id. at 215. He did not

observe any injuries to her at that time. Id. at 221.

Sergeant Matt McGovern [*13] ("Officer McGovern")

of NPD testified that, pursuant to a search warrant, he

conducted a forensic analysis of Karr's cell phone.

Officer McGovern testified that "sometimes" law

enforcement is able to retrieve deleted content, but it

depends on the make and model of the cell phone. Id.

at 226.

P19 At the conclusion of the presentation of the State's

evidence, Karr moved for and was granted a directed

verdict on Count 5, Level 6 felony intimidation. Id. at

242. Thereafter, the defense presented the testimony

of DCS employee Marshall Despain ("Despain"). In

May 2015, Despain was an assessment worker, who

was assigned to investigate allegations of domestic

violence between A.P. and Karr and determine "how it

affected the [C]hildren." Tr. Vol. III at 3. Despain

testified to interviewing A.P. in May 2015, then

consulting with law enforcement, reviewing reports,

and interviewing the Children. He also tried to contact

Karr for an interview. DCS ultimately determined that

the report "was unsubstantiated against both [A.P.]

and [] Karr[,]]" meaning that there was no evidence

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that the Children were affected or had "any knowledge

of anything every happening between them[.]" Id. at 23. He explained that his purpose was not [*14] to

determine if something happened between the parents;

he was to assess if the Children were affected and to

make sure they were safe.

P20 At the conclusion of the trial, the jury returned

verdicts of guilty on Count 1, Level 6 felony domestic

battery, Count 2, Level 3 felony rape, and Count 3,

Level 3 felony rape; it returned a verdict of not guilty

on Count 4, strangulation.

P21 The parties appeared on September 2, 2016, for a

sentencing hearing, but by that point, Karr's trial

counsel, Joshua Taylor ("Taylor"), had filed a motion to

withdraw. Karr appeared in person at the September

2 hearing, along with Taylor and replacement defense

attorney Jane Ruemmele ("Ruemmele"), who sought

leave to file an appearance for Karr and a continuance

of the sentencing hearing. Id. at 78. The trial court

granted both Taylor's request to withdraw and Karr's

request to continue the sentencing hearing.

P22 The day before the scheduled September 2

sentencing hearing, Karr also had filed a motion for a

new trial based upon ineffective assistance of trial

counsel. Ruemmele noted to the court at the

September 2 hearing that Karr's ineffective assistance

claims were still preliminary and would later be

supplemented [*15] because Karr did not yet have a

copy of the trial transcript or A.P.'s medical records,

including any medications A.P. was taking or had

A-15

received at the E.R., which information Ruemmele

argued would have been relevant to A.P.'s memory of

the alleged incidents, and thus, the ineffective

assistance claims would be supplemented upon review

of those materials. On September 2, Karr proceeded to

present Taylor's testimony relative to Karr's

ineffective assistance of counsel claims as alleged in

his motion for a new trial. Among other things, Taylor

testified as to what medical records he requested or

did not request, what witnesses he called or did not

call, and why he did not explore alleged drug use by

A.P., explaining that his actions were based upon

strategic decisions and assessments. He also discussed

having made a motion in limine, making certain

objections, and his decision not to request a mistrial at

one point because he believed "things were going about

as well as they could have at that point," and Taylor

believed "there was a decent chance the jury would

find Mr. Karr not guilty[.]" Id. at 97. Taylor testified

that, both before and during trial, Karr and Taylor had

discussed whether [*16] to have Karr testify and the

risks associated with him doing so, noting his concern

that having Karr testify would provide a chance for

"fairly harmful" evidence to come into evidence. Id. at

99. In closing the hearing, the trial court directed that

a trial transcript be prepared for Karr's use and review

in preparing for the hearing on a motion for a new

trial, and took the motion for a new trial under

advisement.

P23 On September 19, 2016, the trial court conducted

an additional evidentiary hearing on Karr's ineffective

assistance of trial counsel claims, as alleged in his

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motion for a new trial, presenting testimony of: A.P.;

a male neighbor; Officer McGovern; and Taylor. A.P.

was questioned about what prescriptions she had filled

on or before May 5, the night in question, and if she

received intravenous medications while at the E.R.

During her testimony, A.P. stated that she was not

impaired before or during the incident and any

medications taken did not affect her ability to recall

the events. Id. at 135. When on cross-examination

Karr's counsel asked A.P. why she showered before

being examined by the forensic nurse, A.P. explained,

"I was trying to carry on with the day as if it was

normal. Also [*17] had no expectation of being

examined by anyone for anything. At that time my

understanding was that nothing was going to be done

and my only plan for the day was to file for a

protective order." Id. at 132. Officer McGovern, who

had conducted a forensic analysis of Karr's cell phone

and recovered videos, searches, texts and other

information from it, testified that he did not find any

evidence of searches or viewing of pornographic videos,

as A.P. had testified to at trial, and he found no videos

of A.P. performing sex acts, contrary to A.P.'s

testimony that she thought Karr was videotaping her

when she saw his cell phone light behind her. Upon

cross-examination by the State, Officer McGovern

testified that he is not always able to recover deleted

content from a phone. Id. at 141.

P24 At the conclusion of the hearing, the trial court

denied Karr's motion for a new trial, and it also issued

a written order, stating, "The Court being duly advised

finds that the Defendant, has failed to establish that

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trial counsel Joshua Taylor was ineffective at trial by

either error or omission or commission and has further

failed to establish that any conduct by Mr. Taylor

prejudiced the case of the Defendant." Appellant's

[*18] App. Vol. III at 7.

P25 In November 2016, the trial court held a

sentencing hearing, sentenced Karr to two and onehalf years on the battery conviction and to fifteen

years with five years suspended for each rape

conviction, and ordered the sentences for the rape

convictions to run concurrent with one another and

consecutive to the term imposed on the battery

conviction. Karr timely filed a notice of appeal. P26 On

January 6, 2017, Karr filed a Davis/Hatton petition

with this court, seeking to suspend his initial appeal

and pursue post-conviction remedies. We granted his

request, and, on March 3, 2017, Karr filed a petition

for post-conviction relief, alleging that Taylor, his trial

counsel, was ineffective by: (1) failing to use phone

records that showed that Karr's phone did not contain

photos or videos of A.P. performing oral sex, although

A.P. testified that Karr may have been photographing

or videotaping her; (2) failing to use phone records that

showed that Karr's phone did not contain evidence

that he accessed pornographic sites, although A.P. had

testified that he searched for pornography when she

told him she did not want to engage in oral sex; (3)

failing to obtain medical [*19] records of A.P. to

discover whether she had been administered

anesthesia at the E.R. in the hours prior to the alleged

acts that formed the basis of the rape charges; (4)

failing to obtain A.P.'s prescription records to

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determine if she had filled a prescription for narcotics

the same day as the alleged battery; (5) failing to offer

during trial text messages showing conversations

between Karr and A.P. that indicated A.P had filled a

prescription for Narco on May 5, 2015; (6) failing to

offer at trial a text message sent by A.P. to someone, in

which she stated that she had received an IV and felt

better, which Karr asserted "establish[es] that she was

under the influence of narcotics." Appellant's App. Vol.

IV at 3-4.

P27 After filing his motion for post-conviction relief,

Karr filed a motion for change of judge, which was

granted on March 20, 2017. In May 2017, the State

filed a Motion for Summary Denial of Karr's petition

for post-conviction relief, asserting that the claims

raised in Karr's petition had already been litigated and

adjudicated by the trial court pursuant to Karr's

motion for new trial. Id. at 18-22. Following briefing,

the post-conviction court granted the State's request

and [*20] issued an order on June 13, 2017. The order

stated that evidence was heard during two hearings on

Karr's motion for a new trial that alleged ineffective

assistance of counsel, and the post-conviction court's

order further stated, in part:

13. Although the Petitioner has abandoned two

grounds of alleged ineffectiveness of counsel

originally raised in the trial court, the

allegations now raised in the Petitioner's

Petition for Post- Conviction Relief are

otherwise the same. All of the grounds alleged

in the pending Petition were directly argued,

A-19

were available to be argued from the evidence

and/or were available to be raised at the time of

the hearing on Petitioner's Motion for a New

Trial.

14. In his Motion for a New Trial, the Petitioner

sought to have his convictions for Domestic

Battery and Rape vacated based upon the

alleged ineffective assistance of counsel. This is

the exact same relief requested in the

Petitioner's Petition for Post- Conviction Relief,

and that relief is sought based upon the exact

same grounds that were raised or could have

been raised and determined under Petitioner's

Motion for a New Trial.

15. Finally, and most obviously, the parties to

the controversy in the [*21] current matter are

the same as those who were the parties to the

original criminal case.

16. A court may grant a motion by either party

for summary disposition of a petition for postconviction relief when it appears that there is

no genuine issue of material fact and the

moving party is entitled to judgment as a

matter of law.

17. In this case, there is no genuine issue of

material fact because the evidentiary issues

now raised by the Petitioner have already been

heard and decided against Petitioner in the

original trial court.

A-20

Id. at 129-132. Karr filed a motion to reconsider, which

the post-conviction court denied. Karr now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

P28 Karr contends that the State presented

insufficient evidence for the jury to conclude that he

was guilty of domestic battery and two counts of rape.5

Our standard of review is deferential to the fact-finder,

and we consider only the evidence and reasonable

inferences most favorable to the convictions, neither

reweighing evidence nor reassessing witness

credibility. Taylor v. State, 86 N.E.3d 157, 163 (Ind.

2017). We will reverse only if no reasonable fact-finder

could find the defendant guilty. Id. at 164. The

evidence is not required to overcome every reasonable

hypothesis [*22] of innocence and is sufficient if an

inference may reasonably be drawn from it to support

the verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind.

2007).

P29 To prove Karr committed Level 3 felony rape, the

State was required to present sufficient evidence that

5

We note that in both his issue statement and his argument

section, Karr claims that his "conviction" (singular) is not

supported by sufficient evidence, which suggests to us that he is

appealing only one conviction. Appellant's Br. at 2, 41. However,

Karr later urges in his brief that, for the reasons argued, we

vacate his "convictions" (plural). Id. at 44. We thus infer that he

is challenging the sufficiency of the evidence as to all three of his

convictions.

A-21

he caused A.P. to "perform or submit to other sexual

conduct" when she was "compelled by force or

imminent threat of force[.]" Ind. Code § 35-42-4-1(a)(1).

Indiana Code section 35-31.5-2-221.5 defines "other

sexual conduct" as "an act involving ... a sex organ of

one person and the mouth or anus of another person."

Karr argues, "There was no forensic evidence

establishing that a sex act occurred[,]" noting that

officers did not observe physical injuries, Officer

McGovern did not find pornographic videos on Karr's

phone, nor any videos or pictures of A.P. performing

oral sex. Appellant's Br. at 20.

P30 We reject Karr's argument. First, it ignores that

nurse Bowens found evidence of physical injuries to

A.P., including an injury to the inside of her lip and

petechiae on the roof of A.P.'s mouth, and Bowens

testified that a penis striking the roof of the mouth

could cause petechiae. Second, there does not need to

be "forensic evidence establishing that a sex act

occurred" to support the convictions. "A rape conviction

may rest [*23] solely on the uncorroborated testimony

of the victim." Carter v. State, 44 N.E.3d 47, 54 (Ind.

Ct. App. 2015) (citing Potter v. State, 684 N.E.2d 1127,

1136 (Ind. 1997)). P31 Karr also contends that, as to

the Level 6 felony domestic battery conviction, there

was no evidence that any battery occurred within the

presence of a child.6

6

Pursuant to the version of Indiana Code section 35-42-2-1.3,

under which Karr was charged and convicted, the offense of

domestic battery is a Class A misdemeanor, but becomes a Level

6 felony, "if the person who Indiana courts have recognized, "[T]he

A-22

P32 In support of his position, Karr points to the fact

that A.P. had already put the Children to bed in their

own bedroom by the time he came home on the night

in question. Karr also notes that A.P. told Officer

Denison that she did not think that the Children had

witnessed the battery. Tr. Vol. II at 150. However, the

inquiry is not whether any of the Children witnessed

the battery; it is whether it was committed in their

presence, including within their possible hearing.

Here, Officer Denison's testimony was that A.P. told

him that she "didn't believe that her kids had

witnessed any of the actual assault that occurred," and

"it was just the verbal part that they had witnessed or

heard." Id. Further, the State presented evidence that

(1) the couch was positioned next to the "very small

hallway" off of which the Children's bedroom was

located, and (2) A.P. generally could hear the Children

talking after she put them to bed in the evenings,

allowing [*24] the inference that they, too, could hear

what was happening outside of their room. Id. at 34.

Evidence was also presented that, during the time that

critical question in determining whether a child is 'present' for

purposes of the statute is whether a reasonable person would

conclude that the child might see or hear the offense; not whether

the child is in the same room as where the offense is taking place."

Manuel v. State, 971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012); see

also True v. State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011)

("presence" for purposes of Indiana Code section 35-42-2-1.3(b)(2)

is "defined as knowingly being within either the possible sight or

hearing of a child"). committed the offense . . . committed [it] in

the physical presence of a child less than sixteen years of age,

knowing that the child was present and might be able to see or

hear the offense."

A-23

Karr was yelling at A.P. and telling her to "suck his

dick," the oldest Child opened her bedroom door. Karr

confronted Child at her door and told her to go back to

bed, at which point A.P. heard Child begin to cry and

go back into her own bedroom. Id. at 39. Based on the

record before us, we find that the State presented

sufficient evidence from which the jury could

reasonably infer that the battery was committed

within the presence of a child.

P33 Karr also argues that A.P.'s testimony as to the

battery and the rape allegations is not to be believed

because she was questioned about, but could not recall,

certain details before, during, and after, the incidents,

including whether she was taking pain medication(s),

if she had filled a certain prescription, or for what

period of time the incidents lasted. Appellant's Br. at

41-42. Karr asserts, "Her lack of memory could have

been that she consumed drugs that day, was

administered drugs that day, or both, or was simply

fabricating the events." Id. at 43. He argues that her

testimony showed that "she had significant [*25]

deficiencies in her ability to recall the details of her

allegations," and her testimony was incredibly dubious

and should not be believed. Id.

P34 The incredible dubiosity rule allows an appellate

court to impinge upon the fact-finder's assessment of

witness credibility when the testimony at trial was so

"unbelievable, incredible, or improbable that no

reasonable person could ever reach a guilty verdict

based upon that evidence alone." Moore v. State, 27

N.E.3d 749, 751 (Ind. 2015). Incredible dubiosity is a

A-24

difficult standard to meet, requiring ambiguous,

inconsistent testimony that "runs counter to human

experience." Carter, 44 N.E.3d at 52. Our Supreme

Court has reiterated the limited scope of the rule and

set out three requirements for its application: (1) a sole

testifying witness; (2) testimony that is inherently

contradictory, equivocal, or the result of coercion; and

(3) a complete absence of circumstantial evidence.

Moore, 27 N.E.3d at 756.

P35 Here, A.P. related her version of events to at least

the following: Officer Denison at the E.R., her doctor

the next day, Officer Boudreau, a victim's advocate

from Prevail, Detective Haskett, and nurse Bowens.

Her testimony was not inherently contradictory or

equivocal, and there is no evidence or assertion that it

was the [*26] result of coercion. Thus, the incredible

dubiosity rule is inapplicable. Further, the rule

requires a complete absence of circumstantial

evidence. In this case, Bowens testified to the injuries

that she observed to A.P.'s scalp, lip, and mouth, which

were consistent with A.P.'s description of what

happened with Karr. Karr's claim that A.P.'s

testimony was not credible is a request for us to

reweigh the evidence, which we cannot do on appeal.

Carter, 44 N.E.3d at 54. The State presented sufficient

evidence to sustain Karr's three convictions.

II. Sentencing

P36 Karr challenges his sentence of an executed

twelve and one-half years, claiming it is excessive, and

he asks us to remand for a new sentencing hearing or,

A-25

alternatively, reduce it. Initially, we note that Karr

makes the assertion that his sentence "is

inappropriate in light of the nature of the offense and

[his] character[,]" Appellant's Br. at 46, but he does not

specifically make any argument or analysis as to either

the nature of the offense or the character of the

offender. Thus, he has waived any inappropriateness

argument under Indiana Appellate Rule 7(B). Perry v.

State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010) (failure

to make cogent argument regarding the nature of

defendant's offense and defendant's character results

in waiver [*27] of appropriateness claim).

P37 Sentencing decisions rest within the sound

discretion of the trial court and are reviewed on appeal

for an abuse of discretion. Kubina v. State, 997 N.E.2d

1134, 1137 (Ind. Ct. App. 2013). A trial court abuses its

discretion if its decision is clearly against the logic and

effect of the facts and circumstances before the court,

or the reasonable, probable, and actual deductions to

be drawn therefrom. Anglemyer v. State, 868 N.E.2d

482, 490, clarified on reh'g, 875 N.E.2d 218 (Ind.

2007). A trial court may be found to have abused its

discretion by failing to enter a sentencing statement at

all; entering a sentencing statement that explains its

reasons for imposing a sentence where such reasons

are not supported by the record or are improper as a

matter of law; or entering a sentencing statement that

omits reasons which are clearly supported by the

record and advanced for consideration. Id. at 490-91.

"[R]egardless of the presence or absence of aggravating

or mitigating circumstances, a trial court may impose

any sentence authorized by statute and permissible

A-26

under the Indiana Constitution." Kubina, 997 N.E.2d

at 1137 (citing Indiana Code section 35-38-1-7.1,

providing non-exhaustive list of aggravating and

mitigating circumstances court may consider).

P38 The range of penalties for a Level 6 felony is a

fixed term of between six months and two and [*28]

one-half years, with the advisory sentence being one

year. Ind. Code § 35-50-2-7. The range of penalties for

a Level 3 felony is a fixed term of between three and

sixteen years, with the advisory sentence being nine

years. Ind. Code § 35-50-2-5. Here, Karr received two

and one-half years on the domestic battery conviction

and fifteen years, with five years suspended, on each

of the rape convictions. In sentencing Karr, the trial

court found as aggravating factors that Karr had a

history of criminal behavior and that his record

reflected that he engaged in what the trial court

termed a "pattern" of similar behavior, committing a

battery after a breakup or as a relationship was

ending. Tr. Vol. III at 232-33. The trial court

recognized as mitigating that his incarceration would

result in unusual circumstances and hardship for his

parents, who relied on him for financial support.

P39 On appeal, Karr argues that the trial court should

also have recognized as a mitigating circumstance that

he suffered multiple concussions in his life. The record

reflects that, at the sentencing hearing, Karr's parents

testified that Karr suffered a concussion on four

occasions, and they described that he had resulting

dizziness, memory issues, and [*29] increased

agitation or frustration. No medical evidence was

A-27

presented, nor any suggested connection as to how

those concussions affected his actions on the day in

question. It is well recognized that a trial court is not

obligated to find a circumstance mitigating because it

is advanced as such by the defendant. Weedman v.

State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014), trans.

denied. Karr also takes issue with the fact that the

trial court stated, "[Y]ou are guilty of having raped . .

. [A.P.] . . . and having battered her rather severely in

the presence, physical presence of her daughter. These

are serious crimes." Tr. Vol. II at 233. He urges that

there was no evidence of "severely" beating A.P., and

the trial court erred when it used that circumstance as

an aggravator. Upon review of the record, we find that,

contrary to Karr's claim, the trial court did not use this

as an aggravator, and, rather, as the State suggests, it

was a comment that was part of the court's discussion

of the jury's verdict. The trial court did not rely on the

severity of the battery as an aggravating circumstance.

Karr has failed to establish that the trial court abused

its discretion when it sentenced him.

III. Ineffective Assistance of Trial Counsel

P40 Karr [*30] claims that the trial court erred when

it determined that he did not receive ineffective

assistance of trial counsel and, so finding, denied his

motion for a new trial, which sought relief on that

basis. To succeed on a claim of ineffective assistance of

counsel, a petitioner must show not only that his trial

counsel's representation fell below an objective

standard of reasonableness, but also that the deficient

performance resulted in prejudice. Manzano v. State,

A-28

12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (quoting

Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001))

(quotations omitted), trans. denied, cert. denied 135 S.

Ct. 2376, 192 L. Ed. 2d 177 (2015). To establish

prejudice, a petitioner must show that counsel's errors

were so serious as to deprive him of a fair trial because

of a reasonable probability that, but for counsel's

unprofessional errors, the result would have been

different. Id. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id.

P41 There is a strong presumption that counsel

rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional

judgment. Id. Counsel is afforded considerable

discretion in choosing strategy and tactics, and these

decisions are entitled to deferential review. Id. Isolated

mistakes, poor strategy, inexperience, [*31] and

instances of bad judgment do not necessarily render

representation ineffective. Id. at 325-26. We do not

second guess counsel's strategic decisions requiring

reasonable professional judgment even if the strategy

or tactic, in hindsight, did not best serve the

defendant's interests. Elisea v. State, 777 N.E.2d 46,

50 (Ind. Ct. App. 2002). If it is easier to dispose of an

ineffectiveness claim by analyzing the prejudice prong

alone, that course should be followed. Manzano, 12

N.E.3d at 326.

P42 Karr asserts that, at trial, "defense counsel's

theory was that the allegations were fabricated[,]" and

"Thus, it was incumbent on trial counsel to present all

readily available sources of evidence to prove that

A-29

these event[s] did not occur." Appellant's Br. at 31.

Karr maintains that Taylor should have but failed to

present evidence of drug consumption by A.P. at or

near the time of the incidents, through investigation

and discovery of medical information such as A.P.'s

prescriptions that she was taking or had been

prescribed or the E.R. records on the night in question.

He suggests that if the jury knew of A.P.'s prescribed

pain and anxiety medication, trial counsel could have

effectively impeached her regarding her ability to

remember and recount the events in question.

P43 At the [*32] hearing on Karr's motion for a new

trial, Taylor was asked about why he "did not explore

[A.P.'s] drug use prior to or during the first offense[,]"

and he replied that Karr would be the only person who

would have been able to testify to that, and Karr did

not testify. Tr. Vol. II at 97. Karr argues that Taylor

could have requested her prescription medication or

"asked A.P. when she testified." Appellant's Br. at 33.

A pharmacy bag was admitted during the hearing on

Karr's motion for a new trial indicating that A.P. filled

a prescription for Narco on May 5, 2015. Also admitted

at the hearing were medical records from A.P.'s

doctor's visit on May 7, 2015, which reflected that A.P.

reported taking hydrocodone. Tr. Vol. III at 122; Ex.

Vol. IV at 122. Karr urges that "[t]he jury never heard

this evidence because trial counsel did not present it."

Appellant's Br. at 34.

P44 Effective representation requires adequate

pretrial investigation and preparation, but we resist

judging an attorney's performance with the benefit of

A-30

hindsight. McKnight v. State, 1 N.E.3d 193, 200 (Ind.

Ct. App. 2013). Accordingly, when deciding a claim of

ineffective assistance for failure to investigate, we give

a great deal of deference to counsel's judgments. Id. at

201. Strategic [*33] choices made after thorough

investigation of law and facts relevant to plausible

options are virtually unchallengeable, and strategic

choices made after less than complete investigation are

reasonable precisely to the extent that reasonable

professional judgments support the limitation on

investigation. Id. In other words, counsel has a duty to

make reasonable investigations or to make a

reasonable decision that makes particular

investigations unnecessary. Id.

P45 Here, A.P. testified at the hearing that she may

have filled a prescription earlier in the day, but did not

recall for certain if or where she did so, and she

testified that she was not impaired due to drug

consumption and her memory was not affected by any

medication. A.P.'s testimony was clear and detailed,

and there was no evidence suggesting she did not

remember the events in question. She was consistent

with what she told Officer Denison at the E.R. that

night, and there was no evidence that she exhibited

signs of impairment. Karr has failed to show that he

was prejudiced by Taylor's decision not to obtain and

present medical records evidence concerning any drugs

A.P. may have consumed prior to the domestic battery.

P46 [*34] Karr also asserts that trial counsel should

have obtained medical records from the E.R. as to

what medications she received at the hospital, as that

A-31

would have affected her memory of what happened

thereafter, including the forced oral sex supporting the

rape charges. He argues, "Whether she was under the

influence of anesthesia and dreaming or imagining the

events was important to explore" and "had trial

counsel properly impeached her with her drug

consumption of opiates and anesthesia administered at

the ER . . . the outcome would have been different."

Appellant's Br at 33, 43. Initially, we note that there

is no evidence in this record that A.P. was given

"anesthesia" at any point. Upon Karr's questioning at

the hearing on his motion for a new trial, A.P.

acknowledged that she sent a text while at, or before

leaving, the hospital to someone, stating "I got an IV

for meds so I'm feeling a lot better." Tr. Vol. III at 124.

However, she also stated, "I'm not sure whether I

actually received the IV medications or if I just told

him that." Id. Furthermore, A.P. testified that at no

time was she impaired, and she had no issues with

remembering what Karr did to her. As the State

observes, [*35] "[T]he totality of the evidence . . .

supports only that A.P. was clear of thought and

speech at all relevant times[,]" including in her

interviews with nurse Bowens, who characterized A.P.

as calm but tearful at times, with Officer Denison, who

described her as calm and composed but concerned,

and Detective Hackett, who said she was "matter of

fact" but sometimes would "tear up" while describing

what happened. Appellee's Br. at 30; Tr. Vol. II at 14647, 160, 182, 214-15. Furthermore, Taylor testified at

the hearing that it was his strategic decision not to

obtain the records. Tr. Vol. III at 124. Karr has failed

to show that Taylor's tactical decision to not try to

A-32

obtain A.P.'s prescription and medical records, which

may or may not have been discoverable or admissible,7

was unreasonable or that Karr was prejudiced by trial

counsel's choice.

P47 On appeal, Karr also contends that Taylor was

ineffective for failing to present to the jury that Officer

McGovern conducted a forensic analysis of Karr's

phone, but did not find any evidence that Karr (1) had

accessed pornographic videos, as A.P. had stated in her

testimony, and (2) had photographed or videotaped

A.P., as she [*36] suspected when she saw the light of

his phone behind her. He argues, "Trial counsel never

presented this affirmative evidence to the jury[,]"

which "was in the possession of the State and readily

available," and it "showed that A.P.'s story could not be

corroborated." Appellant's Br. at 38.

P48 As an initial matter, we disagree that A.P.'s story

"could not be corroborated"; as discussed above, the

injuries and redness observed by nurse Bowens were

consistent with the reports that A.P. made to police.

Regardless, even if the trial counsel had presented the

evidence, and the jury was persuaded that A.P. was

incorrect when she said that Karr was viewing

pornography and recording her acts with his cell

7

"To make a sufficient showing that [rape victim's] prescription

drug records were discoverable, [the defendant] must demonstrate

that his request was particular and material." Williams v. State,

819 N.E.2d 381, 386 (Ind. Ct. App. 2004), trans. denied. "[W]hile

generally evidence of drug use may be excluded at trial, evidence

of drug use affecting a witness's ability to recall underlying events

is admissible." Id.

A-33

phone, such evidence would not necessarily undermine

her account of the incidents, i.e., Karr has not

established that he was prejudiced by the failure to

present the cell phone evidence.

P49 We further note that Karr was charged with five

counts. Taylor successfully argued for and received a

directed verdict on one count and successfully received

an acquittal on one of the remaining counts. Several

pieces of evidence were excluded from evidence based

upon Taylor's objections, and he thoroughly [*37]

cross-examined witnesses, including A.P. We conclude

that Karr has not established either deficient

performance or prejudice stemming from trial

counsel's representation. The trial court correctly

determined that Taylor had not provided ineffective

assistance and, therefore, appropriately denied Karr's

motion for a new trial.

IV. Denial of Post-Conviction Relief

P50 After the trial court denied his motion for a new

trial, Karr filed a notice of appeal with this court,

which pursuant to his request, we dismissed without

prejudice, allowing him to file a petition for postconviction relief, which he did, also requesting and

receiving a change of judge. The State filed a motion

for summary denial of Karr's petition for postconviction relief, which motion the trial court granted

on the basis that Karr was raising the same ineffective

assistance of counsel claims that that he had asserted

in his motion for a new trial — which had already been

heard and decided — such that his post-conviction

A-34

claims were barred by res judicata. Karr asserts that

the post-conviction court's denial of his petition was

erroneous and asks us to vacate the decision and

remand to the post-conviction court for a [*38]

hearing.

P51 A petitioner seeking post-conviction relief bears

the burden of establishing grounds for relief by a

preponderance of the evidence. Post-Conviction Rule

1(5). A post-conviction court is permitted to summarily

deny a petition for post-conviction relief if the

pleadings conclusively show the petitioner is entitled

to no relief. P-C.R. 1(4)(f). "'An evidentiary hearing is

not necessary when the pleadings show only issues of

law; [t]he need for a hearing is not avoided, however,

when a determination of the issues hinges, in whole or

in part, upon facts not resolved.'" Kuhn v. State, 901

N.E.2d 10, 13 (Ind. Ct. App. 2009) (quoting Godby v.

State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans.

denied). On appeal, "A petitioner who is denied postconviction 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."

Collins v. State, 14 N.E.3d 80, 83 (Ind. Ct. App. 2014).

P52 Karr's petition for post-conviction relief asserted

that Taylor provided ineffective assistance in the

following summarized ways: (1) he failed to offer at

trial phone records showing that Karr's phone (a) did

not contain photos or videos of A.P. during the oral sex

and (b) did not contain evidence that he accessed

pornographic sites; (2) he failed to obtain medical

A-35

records [*39] of A.P. to discover whether she had been

administered anesthesia at the E.R. and failed to

obtain A.P.'s prescription records to determine if she

had filled a prescription for narcotics the same day as

the alleged battery; and (3) he failed to offer at trial a

text message written by A.P. showing that (a) she

filled a prescription for Narco on May 5, 2015, and (b)

she sent a text message to someone from the hospital

before leaving the E.R. stating that she had received

an IV and felt better. Appellant's App. Vol. IV at 3-4.

P53 The post-conviction court determined that these

issues were litigated at the two hearings on Karr's

motion for a new trial and were barred by claim

preclusion. Id. at 130. We agree. "'Res judicata,

whether in the form of claim preclusion or issue

preclusion (also called collateral estoppel), aims to

prevent repetitious litigation of disputes that are

essentially the same, by holding a prior final judgment

binding against both the original parties and their

privies.'" M.G. v. V.P., 74 N.E.3d 259, 264 (Ind. Ct.

App. 2017) (quoting Becker v. State, 992 N.E.2d 697,

700 (Ind. 2013)). "'Claim preclusion applies when the

following four factors are present: (1) the former

judgment was rendered by a court of competent

jurisdiction; (2) the former judgment was rendered on

the merits; [*40] (3) the matter now at issue was, or

could have been, determined in the prior action; and

(4) the controversy adjudicated in the former action

was between parties to the present suit or their

privies.'" Id. (quoting Dawson v. Estate of Ott, 796

N.E.2d 1190, 1195 (Ind. Ct. App. 2003)). When claim

preclusion applies, all matters that were or might have

A-36

been litigated are deemed conclusively decided by the

judgment in the prior action. Id.

P54 Here, the record reflects that, at the first hearing

on Karr's motion for a new trial, held on September 2,

2016, Karr presented testimony from trial counsel,

Taylor, and, among other things, Taylor testified as to

what medical records he requested or did not request,

what witnesses he called or did not call, and why he

did not explore alleged drug use by A.P., explaining

that his actions were based upon strategic decisions

and assessments. Understanding that Karr's counsel,

Ruemmele, needed a trial transcript to further explore

ineffectiveness issues, the trial court scheduled a

second hearing, and it directed that a trial transcript

be prepared promptly for Ruemmele's use. The second

hearing was held September 19, at which Karr

presented the testimony of four witnesses, including

A.P., who testified that she was [*41] not impaired

and her memory was not affected by any medications.

Officer McGovern testified that, while his forensic

analysis of Karr's cell phone did not show that Karr

accessed pornographic sites or had taken pictures or

video of A.P., he also testified that it is not always

possible to recover deleted material from a phone. Karr

also presented seven exhibits, including a prescription

bag

from

CVS

pharmacy

for

a

hydrocodoneacetaminophen prescription for A.P. and

medical records from Community North from her E.R.

visit. Ex. Vol. IV at 119, 121-22 (Def. Exs. D, E).

P55 Karr refers us to the recognized principle that

"[a]n issue previously considered and determined in a

A-37

defendant's direct appeal is barred for post-conviction

review on grounds of prior adjudication - res

judicata[,]" and urges that, here, "Because Karr has

not challenged the adequacy of his trial representation

on direct appeal, his ineffective assistance claims are

not waived." Appellant's Br. at 26-27 (citing Conner v.

State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied,

531 U.S. 829, 121 S. Ct. 81, 148 L. Ed. 2d 43 (2000),

and Overstreet v. State, 877 N.E.2d 144, 178 (Ind.

2007), cert. denied, 555 U.S. 972, 129 S. Ct. 458, 172 L.

Ed. 2d 331 (2008)). We do not find that Karr's claims

are waived; we find that his claims of ineffective

assistance of counsel have already been raised, heard,

and decided. To the extent that [*42] Karr is arguing

that only those claims of ineffective assistance of

counsel that were raised on direct appeal may be

barred by res judicata, we disagree with his suggestion

that direct appeal is the exclusive basis for rendering

the ineffectiveness assistance claims barred. We find

that, in the unique posture and context of this case,8 it

was not error for the post-conviction court to find that

Karr was not entitled to relitigate the claims, and we

find no error with its decision to grant the State's

8

The State suggests that Karr's petition for post-conviction relief

was the functional equivalent to a successive petition "because it

raised only the same claims previously presented to the trial court

for adjudication[,]" and our Supreme Court has explained that,

"[A] defendant is entitled to one post-conviction hearing and one

post-conviction opportunity to raise the issue of ineffective

assistance of trial counsel in the absence of newly discovered

evidence or a Brady violation." Appellee's Br. at 27 (citing Daniels

v. State, 741 N.E.2d 1177, 1184-85 (Ind. 2001)). Our holding today

is consistent with the Supreme Court's reasoning.

A-38

request for summary denial of Karr's petition for postconviction relief.9

P56 Affirmed.

P57 Bailey, J., and Pyle, J., concur.

9

We also reject Karr's claim that — due to trial counsel's alleged

ineffectiveness, combined with the trial court's comment during

the hearing on the motion for a new trial, where the trial court

stated that it was "pretty certain" that it would not have granted

any request by trial counsel for A.P.'s prescription records, Tr.

Vol. III at 102 — he was denied his right to explore bias and

motive, was thereby denied his right to confrontation and a fair

trial, and was entitled to post-conviction relief. Reply Br. at 14.

A-39

APPENDIX C

STATE OF INDIANA

COUNTY OF HAMILTON

IN THE SUPERIOR COURT NO. 5

OF HAMILTON COUNTY

[DATE STAMP]

FILED

June 13, 2017

/s/

CLERK OF THE HAMILTON

CIRCUIT COURT

DONALD G. KARR, JR.,

Petitioner

v.

STATE OF INDIANA and

HAMILTON COUNTY PROSECUTOR'S

OFFICE,

Respondents

CAUSE NO. 29D05-1703-PC-001576

ORDER ON STATE'S MOTION FOR

SUMMARY DENIAL OF THE PETITION

FOR POST-CONVICTION RELIEF

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The State having filed its Motion for Summary

Denial of the Petition for Post-Conviction Relief filed

in this cause. Petitioner having filed his Response

thereto and the State having then filed its Reply in

Support of Summary Denial, and the Court being duly

advised in the premises, does now enter the following

findings and ruling.

1. The Defendant was found guilty under cause

number 29D03-1505-F6-004047 for the offense of

Domestic Battery, a Level 6 felony, and two counts of

Rape as Level 3 felonies.

2. On September 1, 2016, the Petitioner, by

counsel, filed a Motion for a New Trial specifying five

separate allegations.

3. On September 2, 2016, the original trial court

heard testimony and argument on the Motion for a

New Trial.

4. On September 19, 2016, a hearing was

specifically held on the Petitioner's Motion for a New

Trial. Additional evidence and argument was received

by the original trial court at that time.

5. Thereafter, the original trial court denied the

Petitioner's Motion for a New Trial.

6. The Petitioner herein flied his Petition for

Post-Conviction Relief under a PC cause number in the

original trial court. After a motion for change of judge

was granted, the cause was transferred to the above

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court under the above-captioned cause number.

7. Summary denial of the Petitioner's Petition

for Post-Conviction Relief should be granted because

the Petitioner is barred from raising his

post-conviction relief claims by the doctrine of res

judicata.

8. Res judicata has two branches: claim

preclusion and issue preclusion, and the Petitioner's

Petition is barred by the law regarding claim

preclusion.

9. The claim of preclusion applies when a final

judgment on the merits has been rendered which acts

as a complete bar to a subsequent action on the same

issue or claim between the parties.

10. For claim preclusion to apply, four factors

must be present: (1) the former judgment must have

been rendered by a court of competent jurisdiction; (2)

the former judgment must have been rendered on the

merits; (3) the matter now in issue was, or could have

been, determined at a prior action; and (4) the

controversy adjudicated in the former action must

have been between the parties to the present suit.

11. Judgment on the Petitioner's Motion for a

New Trial was rendered by a court of competent

Jurisdiction, that being Hamilton County Superior

Court 3.

12. Judgment on the Petitioner's Motion for a

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New Trial was rendered on the merits. Evidence was

heard during two hearings. Evidence and argument

was received by the original trial court, and upon

considering that evidence and argument, Petitioner's

Motion for a New Trial was denied.

13. Although the Petitioner has abandoned two

grounds of alleged ineffectiveness of counsel originally

raised in the trial court, the allegations now raised in

the Petitioner's Petition for Post-Conviction Relief are

otherwise the same. All of the grounds alleged in the

pending Petition were directly argued, were available

to be argued from the evidence and/or were available

to be raised at the time of the hearing on Petitioner's

Motion for a New Trial.

14. In his Motion for a New Trial, the Petitioner

sought to have his convictions for Domestic Battery

and Rape vacated based upon the alleged ineffective

assistance of counsel. This is the exact same relief

requested in the Petitioner's Petition for PostConviction Relief, and that relief is sought based upon

the exact same grounds that were raised or could have

been raised and determined under Petitioner's Motion

for a New Trial.

15. Finally, and most obviously, the parties to

the controversy in the current matter are the same as

those who were the parties to the original criminal

case.

for

16. A court may grant a motion by either party

summary disposition of a petition for

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post-conviction relief when it appears that there is no

genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.

17. In this case, there is no genuine issue of

material fact because the evidentiary issues now

raised by the Petitioner have already been heard and

decided against Petitioner in the original trial court.

While that decision may be an issue for direct appeal.

the Petitioner is foreclosed from raising the same

issues that have already been decided through a

request for post-conviction relief. Therefore. the State

is entitled to judgment as a matter of law.

For all of the above reasons, the Petitioner's for

Post-Conviction Relief is now hereby denied. The

hearing currently set for July 3, 2017, Is vacated, and

the State's Motion to Continue that hearing is denied

as moot.

SO ORDERED June 13, 2017

/s/

Wayne A. Sturtevant, Judge

Hamilton Superior Court No. 5

Distribution:

J. Ruemmele

PA

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APPENDIX D

STATE OF INDIANA

COUNTY OF HAMILTON

IN THE HAMILTON SUPERIOR COURT

CAUSE NO. 29D03-1505-F6-004047

STATE OF INDIANA,

PLAINTIFF,

VS.

DONALD G. KARR, JR

DEFENDANT

ORDER ON DEFENDANT’S

MOTION FOR A NEW TRIAL

This matter came for hearing on September 19,

2016 on the motion of Defendant, Donald G. Karr, Jr.

for a new trial. Mr Karr appeared in person and by

counsel Jane H. Ruemmele and the State appeared by

Jessica Paxson and Jesse Emerson. Evidence and

argument were submitted. The Court being duly

advised finds that the Defendant, has failed to

establish that trial counsel Joshua Taylor was

ineffective at trial by either error or omission or

commission and has further failed to establish that

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any conduct by Mr. Taylor prejudiced the case of the

Defendant. Defendant’s request for new trial due to

the ineffective assistance of trial counsel should be

DENIED.

IT IS THEREFORE ORDERED ADJUDGED

AND DECREED that Defendant’s Motion for a new

trial is hereby DENIED. Cause is confirmed for

sentencing hearing on September 23, 2016 at 1:30 P.M.

/s/

JUDGE, HAMILTON SUPERIOR COURT

Dated: 09/19/2016

Copies to:

Jane Ruemmele

Jessica Paxson

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APPENDIX E

IN THE

INDIANA SUPREME COURT

Filed: 2/20/2018 9:58 AM

CAUSE NO. 29A02-1707-CR-1502

DONALD G. KARR, JR.,

Appellant/Petitioner below,

v.

STATE OF INDIANA,

Appellee/Respondent below.

Appeal from the

Hamilton Superior Courts 3 and 5

Trial Court Case No.:

29D03-1505-F6-004047

The Honorable William J. Hughes, Judge

Post-Conviction Court:

29D05-1703-PC-001576

The Honorable Wayne A. Sturdevant, Judge

CORRECTED

PETITION FOR TRANSFER

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Jane H. Ruemmele, 6555-49

HAYES RUEMMELE, LLC

141 E. Washington Street Ste 225

Indianapolis, IN 46204

(317) 491-1050

Attorney for Appellant

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QUESTIONS PRESENTED ON TRANSFER

I. Did the PC court err in granting summary judgment;

II. Did trial counsel commit ineffective assistance of

counsel;

III. Whether trial counsel’s ineffective assistance of

counsel combined with the court’s position on the

documentation of drug consumption denied Karr a fair

trial;

IV. Is the evidence sufficient to support the

convictions, in light of the evidence that was not

presented due to trial counsel’s deficient performance;

and

V. Whether the sentence is appropriate in light of the

nature of the offense and Karr’s character.

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TABLE OF CONTENTS

Questions Presented on Transfer . . . . . . . . . . . . . . 2

Background and Prior Treatment

of the Issues on Transfer . . . . . . . . . . . . . . . . . . . . 4

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. The Post-Conviction Court Erred In

Granting Summary Denial of Post-Conviction

Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. Post-Conviction Relief Should Be Granted

Because Trial Counsel Failed to Know the Law or

Investigate and Failed to Present Readily Available

Evidence in Support of the Theory of Fabrication . 6

III. Trial Counsel’s Ineffectiveness Combined

with the Court’s Position on Drug Consumption

Evidence Denied Karr a Fair Trial . . . . . . . . . . . . 10

IV. Karr’s Convictions Are Not Supported by

Sufficient Evidence . . . . . . . . . . . . . . . . . . . . . . . . 12

V. Karr’s Sentence is Inappropriate in Light

of the Nature of the Offense and his Character . . 15

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Word Count . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . 17

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BACKGROUND AND PRIOR TREATMENT

OF THE ISSUES ON TRANSFER

On January 31, 2017, the Court of Appeals

affirmed the trial court and the post-conviction court

in a memorandum decision.

Relevant events occurred late May 5, 2015, and

early May 6, 2015. Karr was alleged to have battered

and sexually assaulted A.P., his live-in girlfriend.

Karr’s jury trial resulted in convictions on count 1,

Domestic Battery, a Level 6 Felony, Count 2, Rape, a

Level 3 Felony and Count 3 Rape, a Level 3 Felony,

and an acquittal on count 4, Strangulation. (App. Vol.

II, pp. 103-106). The trial court directed a verdict in

favor of Karr on Count 5, Intimidation. (App. Vol. II,

p.104). The Court of Appeals affirmed the sufficiency

of the convictions, an issue upon which Karr seeks

transfer.

Following the jury trial, the trial court denied a

Motion for a New Trial wherein ineffective assistance

of counsel was raised; however, the trial court did not

issue post-conviction findings of fact or conclusions of

law sufficient to satisfy the PC rules. The Court of

Appeals failed to address this issue and Karr seeks

transfer on the adequacy of the trial court’s denial.

At sentencing, the court imposed an aggravated

sentence on Count I, Domestic Battery to two and onehalf (2 ½) years, fifteen (15) years with five (5) years

suspended on count 2 Rape, a Level 3 Felony, fifteen

(15) years with five (5) years suspended on count 3,

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Rape, a Level 3 Felony, sentences on Count II, and II

to be served concurrently, both of those to be served

consecutively to Count I, for a total executed sentence

of twelve and one–half (12 ½) years. (App. Vol. III,

110-113). The Court of Appeals affirmed Karr’s

sentence, an issue for which Karr seeks transfer.

Following the filing of a Notice of Appeal, Karr

filed a Verified Petition for Return of Case to Trial

Court For The Purpose Of Pursing Post-Conviction

Relief, a “Davis Petition,” requesting remand or

dismissal of the appeal to pursue PCR remedies. (App.

Vol. IV, p. 28). The Court of Appeals granted the order

and dismissed the appeal. (App. Vol. II, p. 33). Karr

filed his Verified Petition for Post-Conviction Relief.

(App. Vol. IV, p.2). Upon the State’s motion, the court

granted summary judgement on the basis of res

judicata. (App. Vol. IV, p. 129). The Court of Appeals

affirmed the PC court’s grant of summary judgment,

thus, affirming the trial court’s decision that trial

counsel was not ineffective and that a new trial was

not warranted. Karr seeks transfer on both of these

issues.

Pursuant to App.R. 57(G)(3), Karr respectfully

refers the Supreme Court to the extensive factual and

procedural backgrounds relevant to the issues set forth

in the Statement of Facts and Statement of the Case

in his Appellant’s Brief.

ARGUMENT

I. The Post-Conviction Court Erred In Granting

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Summary Denial of Post-Conviction Relief

The Court of Appeals erred by affirming the PC

court’s order granting summary judgment based on res

judicata. The necessity of an evidentiary hearing is

avoided when pleadings show only issues of law, but

the need for a hearing is not avoided when a

determination of the ultimate issues hinges, in whole

or in part, upon unresolved factual questions of a

material nature. Armstead v. State, 596 N.E.2d 291,

292 (Ind. Ct. App. 1992). The PC court shall make

specific findings of fact and conclusions of law on all

issues presented, whether or not a hearing is held. PC.R. 1(6). The findings must be supported by facts and

the conclusions must be supported by law. Allen v.

State, 749 N.E.2d 1158, 1164 (Ind. 2001). The trial

court did not conduct a PCR hearing, stating instead

that “I don’t think you’ve got much for ineffective

assistance of counsel. There might be some issues

regarding medical records, I don’t know…)” (Tr. Vol.

III, p. 102).

The material issues of fact discussed below,

grounds for granting post-conviction relief, have not

been specifically addressed in any findings of fact by

either the trial court or the PC court. Summary

judgment should be reversed.

II. Post-Conviction Relief Should Be Granted

Because Trial Counsel Failed to Know the Law

or Investigate and Failed to Present Readily

Available Evidence in Support of the Theory of

Fabrication

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Defense counsel’s theory was not consent, but

instead that the allegations were fabricated. (Tr. Vol.

III, p. 41-54). Trial counsel was required to present all

readily available sources of evidence to prove that the

events did not occur. "[S]trategic choices made after

less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation."

Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 2066, 80 L. Ed. 2d 674, 1984 U.S. LEXIS 79, 52

U.S.L.W. 4565 (U.S. May 14, 1984).

Generally evidence of drug use may be excluded

at trial, but evidence of drug use affecting a witness'

ability to recall underlying events is admissible.

Williams v. State, 681 N.E.2d 195, 199 (Ind. 1997). On

the issue of strategy, the State elicited this testimony

from trial counsel:

Q: ... Why did you not explore -- why did

you not explore Ms. [A.P]'s drug use prior

to or during the first offense?

A: The alleged drug use prior to the first

offense -- I'm going to separate the two of

them -- because really it was only Mr.

Karr that could say that, so I didn't know

of another way to be able to get that in

besides Mr. Karr, and in the end Mr.

Karr did not testify. In terms of the

medical records that evening, I just, I

didn't think it was important enough to

show that the battery at that point,

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because I think that's where we were in

the chronology, that the battery had

occurred but nothing else had occurred,

that it would help show that that didn't

happen.

Q: Was that your strategy decision?

A: I would say so.

(Tr. Vol. III, p. 97). First, trial counsel had the facts

wrong. The most serious allegations, two counts of

rape and strangulation, allegedly occurred in the early

morning hours after leaving the ER and after A.P.

stated in a text that she was administered anesthesia.

Whether she was under the influence of anesthesia

and dreaming or imagining the events was important

to explore. Second, trial counsel was so deficient in his

understanding of the rules of evidence, he saw no way

to admit into evidence information of drug use without

having Karr testify. Trial counsel could have requested

A.P.’s prescriptions, could have obtained her medical

records from the ER, could have asked A.P. when she

testified, or could have admitted into evidence the

exhibits admitted at the hearing for a New Trial, a

prescription for Norco (hydrocodone), a Schedule II

opiate, on the day of the alleged event. At the hearing

on the Motion for New Trial, A.P. admitted she sent a

text on May 5, 2017, the day of the alleged offense,

indicating she had just filled a prescription for Norco.

(Tr. Vol. III, p. 120-123). Documentation from CVS

pharmacy was also admitted into evidence, showing a

prescription for Hydrocodone filled on May 5, 2015.

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(Tr. Vol. IV, p.119). A.P. testified she did not

remember if she took any of the Norco immediately

upon filling the prescription. (Tr. Vol. III, p.122). Her

medical records from her doctor visit on May 7, 2015,

admitted into evidence at the hearing for a new trial,

showed that she self-reported that she was on

hydrocodone. (Tr. Vol. III, p.122; Tr. Vol. IV, p. 120).

Regarding anesthesia, A.P. admitted when she got to

the ER, she texted to someone and said, “I got an IV

for meds so I’m feeling a lot better.” (Tr. Vol. III, p.

124). The jury never heard the evidence of whether

A.P. may have been on Norco and possibly anesthesia

when she left the ER.

A.P. testified at the hearing that while she was

living with Karr, she was on disability from her job for

an ankle injury, and was prescribed medication by a

third doctor, but could not remember whether it was

pain medication. (Tr. Vol. III, p. 117). Her prescription

medication records would have been informative, but

trial counsel never obtained them. A.P. also testified at

the hearing she was prescribed Brintellix for anxiety

by yet another doctor, but was not taking it when

living with Karr. (Tr. Vol. III, p. 118) She testified she

was suffering from anxiety on May 5, 2015, but was

not medicated for that condition. (Tr. Vol. III, p. 120).

Regarding information derived from Karr’s

phone, at the hearing on a Motion for a New Trial,

Officer McGovern testified that not all deleted items

could be retrieved, but some could. (Tr. Vol. III, p.138).

Upon his review, there was no evidence on Karr’s

phone that he had accessed pornography in the early

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hours of May 6, 2015 and no videos or pictures of A.P.

performing sex acts. (Tr. Vol. III, p. 128-139; (Tr. Vol.

IV, p. 123). Trial counsel never exposed this

exonerating evidence to the jury, even though it had

been gathered by the State.

“Strategy” decisions will not suffice to overcome

allegations of ineffective assistance of counsel when

those decisions are based on unfamiliarity with the

law or poor investigation. Furthermore, it is not the

role of a reviewing court to engage in post hoc

rationalizations for an attorney's actions by

"constructing strategic defenses that counsel does not

offer" or engaging in Monday morning quarterbacking.

Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990). At

the first hearing on the Motion for New Trial before

trial counsel even testified, the trial court announced

that decisions of trial counsel were “strategy”

decisions. (Tr. Vol. III, p. 89). The testimony and

evidence presented at the hearing on the Motion for

New Trial do not support the trial court’s

presumptions or the court’s subsequent decision

denying the Motion.

The Court of Appeals relies on Manzano v.

State, 12 N.E.3d 321 (Ind. Ct. App. 2014) trans. denied,

cert. denied 135 S. Ct. 2376 (2015), throughout their

argument that trial counsel had not provided

ineffective assistance. The facts in Manzano, however,

significantly differ from this case. In Manzano, the

defendant entered a plea admitting his guilt. The

defendant did not deny raping his daughter and his

daughter identified him as the perpetrator. The court

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held the defendant had little to no probability of

prevailing at trial. In contrast, Karr denied the

allegations and there was no medical evidence

supporting that a sexual assault had occurred. Trial

counsel pursued a theory that the allegations were

fabricated, then did not adequately investigate.

Further, in Manzano, trial counsel disagreed with the

defendant on the viability of the defense of

intoxication, and the court agreed. Here, trial counsel

pursued the fabrication defense, but deficiently

investigated and presented it. It is reasonably probable

that Karr would have succeeded at trial if trial counsel

had obtained evidence, properly cross-examined, and

presented exonerating evidence exploiting the

fabrication. The defense would have prevailed but for

trial counsel’s ineffective assistance.

The trial court made no specific findings on the

material issues of fact as to whether it was ineffective

for trial counsel to have failed to present this evidence

or what strategy supported this omission. In affirming

the PC court’s denial on the basis of res judicata, the

Court of Appeals failed to address the trial court’s

failure to issue specific findings of fact and conclusions

of law.

III. Trial Counsel’s Ineffectiveness Combined

with the Court’s Position on Drug Consumption

Evidence Denied Karr a Fair Trial

At the hearing for a New Trial, the trial court

indicated that under his watch, the discovery on

medical records would not have been provided:

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So I don’t think you’ve got much for

ineffective assistance of counsel. There

might be some issues regarding medical

records, I don’t know. I didn’t see any

medical records. I’m pretty certain that

he would not have gotten an order from

this Court for prescription records. As a

matter of fact, I’m certain he wouldn’t

have. And I don’t imagine you could have

had any kind of ability (indiscernible) to

get those documents from INSPECT or

otherwise.

(Tr. Vol. III p.102). The court may not improperly limit

critical cross examination exploring bias and motive

without impinging on the right to confront and cross

examine the witness. Sigler v. State, 733 N.E.2d 509,

510-511, 2000 Ind. App. LEXIS 1209 (Ind. Ct. App.

2000). The bias or prejudice of a witness is always

relevant as discrediting the witness and affecting the

weight of testimony. Standifer v. State, 718 N.E.2d

1107, 1110 (Ind. 1999): Davis v. Alaska, 415 U.S. 308,

316, 94 S. Ct. 1105, 39 L. Ed. 2d 347, 1974 U.S. LEXIS

104 (U.S. 1974). The court’s position that the medical

information was not discoverable is exactly the

restrictions on discovery prohibited by Sigler.

Karr argued in his brief that the Due Process

Clause of the Fifth Amendment protects against

denials of fundamental fairness that are “shocking to

the universal sense of justice.” United States v.

Russell, 411 U.S. 423, 432, 36 L. Ed. 2d 366, 93 S. Ct.

1637 (1973). Courts find fundamental unfairness when

A-59

error is considered in conjunction with other

prejudicial circumstances within the trial, even though

such other circumstances may not individually rise to

the level of error. Taylor v. Kentucky, 436 U.S. 478,

487 & n. 15, 56 L. Ed. 2d 468, 98 S. Ct. 1930 (1978).

The Court of Appeals rejected this claim of the

denial of confrontation, due process and a fair trial in

a footnote, without analysis or elaboration, thus

leaving a question of law undecided. Opinion, footnote

9, p. 34. The Seventh Circuit recently granted relief on

habeas corpus in Kubsch v. Neal, 838 F.3d 845 (7th

Cir. 2016) on due process grounds where the Indiana

trial court had applied Supreme Court precedent in an

objectively unreasonable manner. The Kubsch court

relied on Chambers v. Mississippi, 410 U.S. 284, 93 S.

Ct. 1038, 35 L. Ed. 2d 297 (1973) and Crane v.

Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d

636 (1986). In this case, Karr argued he was entitled

to discovery on a witness’ drug use affecting a witness'

ability to recall underlying events, relying on the

Indiana Supreme Court decision in Williams v. State,

681 N.E.2d 195, 199 (Ind. 1997). The Court of Appeals’

decision in this case does not even discuss how the

trial court could state that medical information would

not be discoverable, ignoring the mandate of the

Indiana Supreme Court in Williams.

The Court of Appeals erred to rely on A.P’s

testimony given at the hearing for a New Trial

wherein she stated that she was not impaired before or

during the incident and that any medications taken

did not affect her ability to recall the events. Opinion

A-60

of the Court of Appeals, p. 13. Her testimony was

uncontroverted at the hearing precisely because of

trial counsel’s omissions and the trial court’s position

that the records would not have been discoverable.

Relying on A.P’s unimpeached assessment of her own

state of mind begs the question and disregards the full

breadth of her dubious testimony at the hearing for a

New Trial, wherein she demonstrated a clear inability

to recall details of the case only months after the trial

was held.

The trial court’s position and trial counsel’s

ineffectiveness made certain this critical medical

information affecting the credibility of the sole eye

witness would not be heard by the jury. This was a

denial of due process.

IV. Karr’s Convictions Are Not Supported by

Sufficient Evidence

"[T]he Due Process clause protects the accused

against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute

the crime charged." In re Winship, 397 U.S. 358 (1970).

The evidence does not support the convictions. A.P.

was the sole eye witness. Although, with the aid of

enhanced lighting, there were some physical injuries

found behind her ear, her scalp, and some petechiae on

the roof of her mouth. (Tr. Vol. II, pp. 193-200), there

was no forensic evidence of a sex act. Officer McGovern

observed no physical injuries. There were no

pornographic videos or pictures of her performing oral

sex on Karr’s phone, as she had testified.

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At the hearing on the Motion for a New Trial,

A.P. could not recall whether the doctor treating her

ankle was prescribing her pain medication, which

pharmacy filled her prescriptions or who prescribed

her hydrocodone. (Tr. Vol. III, p. 117-120). Then she

admitted she was prescribed hydrocodone by her

OB/GYN, but could not recall if she filled a

prescription for hydrocodone on May 5, 2015, and

taken hydrocodone that day. (Tr. Vol. III, p.120-122).

Even looking at Exhibit D, a bag from CVS Pharmacy,

she stated she could not read it. (Tr. Vol. III, p. 121).

Her medical records from May 7, 2015, showed she

self-reported she was on hydrocodone. (Tr. Vol. III, p.

122-123). She did not recall that she had texted

someone and said she had gotten a prescription for

Norco on May 5, 2015, until confronted with an exhibit

of her text, and could not recall how long she had been

on hydrocodone for her cysts. (Tr. Vol. III, p. 123). She

could not recall whether she requested medication

when she got to the ER. but admitted she sent a text

indicating she received an IV of medication and was

feeling a lot better. She could not remember if that was

true, however, stating it might have been a lie. (Tr.

Vol. III, p. 123- 124).

She told Officer Denison Karr had gotten home

between 8:00p and 8:30p. (Tr. Vol. III, p. 125). She said

the attack by Karr took place for "a couple hours." (Tr.

Vol. III, p. 126). She clarified from the time he got

home until the time they left for the hospital it was a

couple of hours, but she was not sure. (Tr. Vol. III, p.

126). Then she stated the attack occurred about thirty

minutes, maybe an hour. (Tr. Vol. III, p. 126). She got

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the children up but she does not remember if the

children were asleep or awake or how long it took to

convince Karr to take her to the hospital. (Tr. Vol. III,

p. 126-127). She said it took maybe ten to twenty

minutes to get the children up, possibly twenty

minutes to drop the children at the parent’s house. (Tr.

Vol. III, p. 130). She did not remember how long it took

to get from her parent’s house to the hospital. (Tr. Vol.

III, p. 131).

After being refreshed in her memory, she

admitted she was talking with Officer Denison at 9:56

PM. (Tr. Vol. III, p. 132). She did not recall how long it

took to speak with an officer after she first arrived at

the ER. (Tr. Vol. III, p. 133). There is no way the

attack lasted a couple of hours. There was simply not

enough time between 8:30p and 9:56p, the time

between Karr arriving home and their arrival at the

hospital. A.P. exaggerated the events or they simply

did not happen. Trial counsel failed to press her on

these details and expose the dubious nature of her

testimony.

As to the Level 6, Domestic Battery count, the

"presence" of a child, for purposes of Ind. Code § 35-422-1.3(b)(2), is "defined as knowingly being within

either the possible sight or hearing of a child." True v.

State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011).

When Karr got home, A.P. had just put the three

children to bed in a room they shared, and closed their

door. (Tr. Vol. II, p. 34- 35). A.P. testified that during

the alleged incident, the children were in bed. One got

up, asked to use the bathroom, Karr told her no, the

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child went back to bed, and Karr closed the door. (Tr.

Vol II, pp. 39-40). There was no testimony regarding

the distance between the living room, where the

incident allegedly occurred, and the children’s

bedroom, and with the door shut, how much anyone

could have expected the children to hear from their

bedroom. When she got to the ER, A.P. told Officer

Dennison she did not want him to talk to the children,

as she had reported she did not think the children

witnessed anything. (Tr. Vol. II, p. 150). None of the

three children testified at trial.

The Court of Appeals reasoned that A.P. could

hear the children talking after she put them to bed,

“allowing the inference that they, too, could hear what

was happening outside of their room.” Opinion, at p.

20. A.P.’s testimony did not distinguish between being

able to hear with the door open or closed, and the

evidence clearly established that during the incident,

the door to the children’s bedroom was closed. Thus,

the inference is not supported by the record, and this

count should be reversed.

V. Karr’s Sentence is Inappropriate in Light of

the Nature of the Offense and his Character

The Court of Appeals erroneously concluded

that Karr waived and failed to present cogent

argument on the nature of the offense and Karr’s

character. The Court of Appeals expressly noted that

Karr challenged the judge’s determination that A.P.

had been “severely” beaten, when in fact she had not

been. The Court of Appeals acknowledged that Karr

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presented evidence he suffered from multiple

concussions in his life. Finally, the Court of Appeals

acknowledged that Karr presented evidence that his

incarceration would result in unusual circumstances

and hardship for his parents, who relied on him for

financial support. The argument was made, not

waived. For these reasons, whether Karr’s sentence is

appropriate is an undecided question of law.

CONCLUSION

Karr respectfully requests that the Indiana

Supreme Court accept transfer, reverse his convictions

or in the alternative, modify his sentence, remand for

a post-conviction hearing or a new trial, and for all

other just and proper relief.

Respectfully submitted,

/s/ Jane H. Ruemmele

Jane H. Ruemmele, 6555-49

HAYES RUEMMELE, LLC

41 E. Washington Street Ste 225

Indianapolis, IN 46204

Attorney for Appellant

WORD COUNT

I verify that this Petition for Transfer, excluding

Cover information, Table of contents, Table of

authorities, Signature block, Certificate of service and

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Word count certificate, contains no more than 4,200

words, as required by Appellate Rule 44(E).

Respectfully submitted,

/s/ Jane H. Ruemmele

Jane H. Ruemmele, 6555-49

CERTIFICATE OF SERVICE

I certify that on February 20, 2018, the forgoing

document was electronically filed using the Indiana

E–filing system (“IEFS”). I certify that the following

was served upon opposing counsel, via IEFS, and via

email to:

Deputy Attorney General

Respectfully submitted,

/s/ Jane H. Ruemmele

Jane H. Ruemmele, 6555-49

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APPENDIX F

IN THE

IN THE INDIANA COURT OF APPEALS

Filed: 1/6/2017 3:59:11 PM

CAUSE NO. 29A05-1611-CR-2532

DONALD G. KARR, JR.,

Appellant/Petitioner below,

v.

STATE OF INDIANA,

Appellee/Respondent below.

Appeal from the Hamilton Superior Court 3

Trial Court Case No.: 29D03-1505-F6-004047

The Honorable William J. Hughes, Judge

APPELLANT’S VERIFIED PETITION FOR A

RETURN OF CASE TO TRIAL COURT FOR

THE PURPOSE OF PURSUING POSTCONVICTION REMEDIES

Pursuant to Ind. R. App. P. 37, Appellant moves

for his direct appeal to be temporarily stayed and the

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case remanded to the trial court for further

proceedings. In support, Appellant states:

1.

On November 4, 2016, sentence was imposed on

Appellant for three criminal convictions, Domestic

Battery as a Level 6 Felony, and two counts of Rape as

Level 3 Felonies.

2.

The Indiana Court of Appeals has jurisdiction of

this appeal.

3.

No motion to correct error was filed.

4.

On November 15, 2016, Notice of Appeal was

filed with the trial court.

5.

On November 16, 2016, the clerk filed the

Notice of Completion of the Clerk’s Record.

6.

On November 21, 2016, an Amended Notice of

Appeal was filed.

7.

On December 27, 2016, the court reporter filed

notice of completion of the transcript.

8.

Appellant’s brief is due on or before January 26,

2017.

9.

Appellant seeks a return to the trial court for

the purpose of developing the evidentiary record and

the filing of the petition for post-conviction relief.

Hatton v. State, 626 N.E.2d 442, 443 (Ind. 1993); Davis

v. State, 267 Ind. 152, 368 N.E.2d 1149, 1151 (1977).

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The Davis/Hatton procedure involves a termination or

suspension of a direct appeal already initiated, upon

appellate counsel's motion for remand or stay, to allow

a post-conviction relief petition to be pursued in the

trial court. Taylor v. State, 929 N.E.2d 912, 917 n.1

(Ind. Ct. App. 2010), trans. denied.

10.

Appellant’s trial counsel failed to subpoena

prescription records and medical records of the alleged

victim (AV) to investigate the level of her prescription

drug consumption, along with anesthesia administered

at the ER immediately before the most serious

allegations in this case were alleged to have occurred.

The AV’s drug consumption is relevant to her level of

impairment at the time of the alleged events and her

ability to accurately report and recall the events that

are the subject of this prosecution. It is believed these

medical and prescription records would have

supported Appellant’s defense that he was falsely

accused.

11.

At a hearing held in the trial court on

Appellant’s Motion for a New Trial, the AV admitted

to having a prescription for narcotics but could not

recall if she filled it on the day of the first of the

alleged events, with other more serious allegations

allegedly occurring early the next morning after

leaving the ER. She was taken to the ER by the

Appellant for pain from uterine tumors. At the hearing

she could not recall if she was placed under anesthesia

at the ER. In her text messages to the Appellant, she

indicated that she was administered anesthesia at the

ER prior to an ultrasound, but at the hearing the AV

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stated she may have lied about getting anesthesia. The

medical records from the ER would establish whether

she was anesthetized at the hospital, and possibly

whether she disclosed to hospital personnel in her

medical history that she earlier in the day she also had

taken prescription narcotics.

12.

Although efforts were made in the trial court to

develop the record so that the issues of ineffective

assistance of counsel discussed herein---the failure to

obtain prescription and medical records on the days of

the alleged offenses---could be raised on direct appeal,

the trial court indicated in comments to defense

counsel that it would not have granted any defense

discovery request for prescription medication or

perhaps medical records, as well, although the court’s

comments are unclear with regard to the latter. See

Exhibit A, attached, hereto, excerpt from the hearing

on September 2, 2016, Volume 3 of Transcript, page

102, lines 14-23.

13.

Under Indiana law, defense counsel is entitled

to discovery of prescription and medical information

pertaining to the alleged victim’s consumption at or

near the time of the alleged sexual assault. Williams

v. State, 819 N.E.2d 381, 2004 Ind. App. LEXIS 2530,

**13-14 (Ind. Ct. App. 2004) (Access to prescription

drug information that would call into question the

alleged victim’s perception affecting the defendant’s

ability to adequately defend himself is paramount to

confidentiality concerns as asserted by the State.); See

also, Williams v. State, 681 N.E.2d 195 (Ind. 1997)

(While generally evidence of drug use may be excluded

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at trial, evidence of drug use affecting a witness'

ability to recall underlying events is admissible).

14.

At present, the Appellant is unable to present

an adequate record so as to present all issues of

ineffective assistance of counsel on appeal, and

respectfully requests that the Court of Appeals

remand, and suspend this appeal until after postconviction proceedings, and for all other just and

proper relief.

Verification:

I verify that the representations contained in

this pleading are true and accurate to the best of my

knowledge and belief.

Jane H. Ruemmele

Jane H. Ruemmele, Att. No. 6555-49

WHEREFORE, Appellant requests the court to

stay the proceedings and remand to the trial court for

further proceedings, and all other just and proper relief.

Respectfully submitted,

Jane H. Ruemmele

Jane H. Ruemmele, Att. No. 6555-49

141 E. Washington Street, Suite 225,

Indianapolis, Indiana 46204

P: 317.491.1050, F: 317.491.1043

Email: jane@chjrlaw.com

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has

been provided to counsel by ECF on the same date as

filing:

Indiana Attorney General

219 Statehouse

Indianapolis, Indiana 46204

Respectfully submitted,

Jane H. Ruemmele

Jane H. Ruemmele, Att. No. 6555-49

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****

MS. RUEMMELE: Thank you, Your Honor.

THE COURT: I will tell you that I'm highly inclined to

find that your motion should be denied, and the reason

I'm highly inclined to tell you that is my own personal

belief was that if the evidence that Mr . Taylor kept

out successfully by his skillful objections, that being

the text messages that were discovered on your client's

phone, if he hadn't kept that information out, then I

think that there would have been no question but what

this jury would have found your client guilty. And I

was surprised, frankly, that the jury found your client

not guilty without that piece of information. Mr.

Taylor did an amazing job keeping that out. And I

know there were some strategy things there because

what is in those text messages convicted your client on

his own petard pretty clearly . So I don't think you've

got much for ineffective assistance of counsel . There

might be some issues regarding medical records, I

don't know. I didn't see any medical records. I'm pretty

certain that he would not have gotten an order from

this Court for prescription records . As a matter of fact,

I'm certain he wouldn't have. And I don't imagine you

would have had any kind of ability (indiscernible) to

get those documents from INSPECT or otherwise . But

be that as it may we're going to look at what the

transcript says about what Mr. Emerson said. I don't

think there's evidence in the record upon which a

mistrial could have been based. That's my recollection

why it wasn't asked, but

****

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