Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. 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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Kelly A. Kelly

Deputy Pubic Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Christopher Sutton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 14, 2016

Court of Appeals Case No.

01A05-1507-PC-882

Appeal from the Adams Circuit 

Court

The Honorable Chad E. Kukelhan, 

Judge

Trial Court Cause No.

01C01-1201-PC-1

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 01A05-1507-PC-882 | March 14, 2016 Page 2 of 10

Case Summary and Issue

[1] Following a jury trial, Christopher Sutton was convicted of child molesting as a 

Class A felony. He subsequently filed a petition for post-conviction relief 

alleging ineffective assistance of counsel. During the course of post-conviction 

proceedings, Sutton served the State with four proposed Non-Party Requests for 

Production of Documents and Subpoenas Duces Tecum pursuant to Indiana 

Trial Rule 34(C). The requests were directed at four medical providers and 

sought the child victim’s medical records. The State objected to the requests. 

The post-conviction court sustained the State’s objection but certified the matter 

for interlocutory appeal. We accepted jurisdiction. Concluding the postconviction court’s ruling will not prejudice Sutton’s ineffective assistance claim, 

we affirm the post-conviction court’s order quashing Sutton’s subpoenas.

Facts and Procedural History

[2] Many of the facts relevant to Sutton’s conviction were recounted by this court 

on direct appeal:

Seven-year-old Z.H. lived with her mother S.C, her three-year 

old brother, and thirty-two-year-old Sutton. S.C. and Sutton had 

lived together for “about 2, 2 years,” and Z.H. called Sutton 

“daddy.” On July 8, 2008, Z.H. and her brother were in bed 

with S.C. and Sutton. Z.H. had an issue with wetting herself at 

night and wore a pull-up diaper. S.C, who is a sound sleeper, did 

not hear Sutton leave the next morning.

S.C. woke up around 7:00 a.m., and Z.H. was already awake. 
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Z.H. went into the bathroom and her mother told her to take off 

her clothes so that she could take a bath. Z.H. told S.C. that her 

vagina hurt. S.C. told Z.H. that she “probably peed [her] pants, 

um go ahead and take your clothes off you’ll be fine,” and Z.H. 

stated “no mom my vagina hurts because . . . daddy stuck his 

penis in my vagina.”

Without talking to Z.H. about what had happened, S.C. called 

her mother. S.C.’s mother and sister arrived, and her sister called 

the police. Later that day, Danielle Goewert of the Fort Wayne 

Child Advocacy Center interviewed Z.H. and the interview was 

recorded. Z.H. informed Goewert that Sutton put his penis in 

her vagina the previous night. Z.H. stated that Sutton was asleep 

because his eyes were closed. Z.H. stated that Sutton’s penis 

touched her pull-up diaper and that her pull-up diaper went into 

her vagina. Z.H. also stated that her brother once smacked her in 

her vagina.

After her interview, Z.H. was examined at the Fort Wayne 

Sexual Assault Treatment Center by Sharon Robinson, the chief 

administrative officer and a sexual assault nurse examiner. 

Robinson asked Z.H. what had happened to her, and Z.H. stated 

that her “daddy put his penis inside [her] vagina and that he 

pushed [her] pull up inside with his penis . . . .” Robinson 

observed Z.H.’s “internal female sex organ” and “her labia 

minera,” which she described as [“]really dark red . . . .” 

Robinson also observed petechiae, which is “pin point bruising,” 

on Z.H.’s labia minera and above her urethra.

When Sutton arrived home, Berne Police Detective James 

Newbold identified himself to Sutton and asked him if he would 

come to the police department with him. Sutton said that he 

would and asked if he was going to jail. During the interview, 

Detective Newbold told Sutton that the interview related to the 

fact that Z.H. had told her mother that her vagina hurt. Sutton 

stated that Z.H. had complained about her vagina hurting for 

probably the last year. Detective Newbold asked Sutton if there 
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was a particular reason why Z.H.’s vagina would be hurting, and 

Sutton stated that over the weekend Z.H. complained that she 

had been hurt on the “swings or something,” but Z.H.’s aunt 

checked her and determined that she was only scratched. Sutton 

denied placing his penis in Z.H.’s vagina. When asked why Z.H. 

would say that he had placed his penis in her vagina, Sutton 

stated that he is erect in the mornings and that he must roll over 

Z.H. to exit the bed but that his penis did not touch her. Sutton 

also indicated that he attempts to be sure that he is “clear” of the 

children and is “careful” because he knows the children are 

usually in the bed.

* * *

On July 14, 2008, the State charged Sutton with child molesting 

as a class A felony. On December 29, 2008, the State filed a 

notice of intent to introduce Z.H.’s statement at trial pursuant to 

Ind. Code § 35-37-4-6, the Protected Persons Statute, and later 

filed amended notices. On January 5, 2009, the State filed an 

amended information for child molesting as a class A felony. On 

June 16, 2009, the court held a protected person hearing on the 

State’s motion, which Sutton attended. Sutton’s counsel 

questioned Z.H. Barbara Gelder, a psychologist at the Center for 

Neuro-Behavioral Services, testified that she had previously met 

Z.H., reviewed her medical file, and believed that Z.H. would 

suffer harm by testifying. On June 23, 2009, the court entered an 

order concluding that Z.H. was a protected person, was 

unavailable to testify at the trial, and was made available for and 

was cross-examined by defense counsel during the protected 

person hearing.

Sutton v. State, No. 01A05-1002-CR-75, 2010 WL 5386318, at *1-2 (Ind. Ct. 

App. Dec. 21, 2010) (citations omitted), trans. denied. At trial, the State offered 

into evidence a recording of Z.H.’s interview at the Child Advocacy Center, as 

well as Z.H.’s testimony from the protected person hearing. Both exhibits were 
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admitted and played for the jury. S.C. testified that “Z.H. stated that her vagina 

hurt because Sutton ‘stuck his penis in [her] vagina.’” Id. at *2. Sutton also 

testified and denied touching Z.H. in a sexual manner. 

[3] The jury found Sutton guilty of child molesting as a Class A felony, and the 

trial court sentenced Sutton to forty-five years in the Department of Correction, 

with five years suspended. Sutton appealed his conviction, arguing the trial 

court erred in admitting Z.H.’s out-of-court statements and portions of Sutton’s 

interview with Detective Newbold. Finding no reversible error, we affirmed 

Sutton’s conviction, and our supreme court denied his petition to transfer. 

Sutton subsequently filed a petition for post-conviction relief alleging ineffective 

assistance of counsel. Relevant here, Sutton contends in his petition, 

[T]rial counsel failed to conduct an adequate pre-trial 

investigation and therefore failed to discover and present . . . 

medical evidence (including evidence of a playground incident 

the day before the date when Sutton was alleged to have 

molested Z.H.) that could have been used to show that the 

physical injuries and emotional impairment of Z.H. were not 

caused by Sutton . . . . 

Appendix to Brief of Petitioner-Appellant at 14. 

[4] On December 11, 2014, Sutton served the State with four proposed Non-Party 

Requests for Production of Documents and Subpoenas Duces Tecum pursuant 

to Indiana Trial Rule 34(C). The requests were directed at four different 

medical providers and sought “[a]ll medical records” or “[a]ll medical records 

and/or counseling records” for Z.H. dated through July 2008. Id. at 57-74. 
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The State filed an objection to the requests on December 16, 2014. The State 

maintained Sutton was “not entitled to a second opportunity to discover the 

same evidence that he could have discovered prior to trial” and further objected 

because Sutton failed to state “why all of the victim’s medical and counseling 

records from the victim’s birth through July 2008 are relevant or necessary.” Id. 

at 49-50. Sutton filed a response to the State’s objection, arguing the victim’s 

medical records are discoverable under Indiana Trial Rule 26 and relevant to 

his petition for post-conviction relief because trial counsel should have reviewed 

such records in order to rule out alternative explanations for the victim’s 

injuries: 

Counsel has consulted with Dr. Steven R. Guertin, MD, at 

Sparrow Children’s Center in Lansing, Michigan about Sutton’s 

case. After a review of case materials, Dr. Guertin opined that 

the medical condition of the victim could have resulted from 

something other than an incident of molestation. Specifically, 

the scattered petechiae and redness/swelling could have been 

caused by aggressive masturbation, straddle injury, streptococcal 

disease and/or lichen sclerosis et atrophicus.

Id. at 53.1 

[5] At a hearing held on February 6, 2015, the State argued the issue was already 

litigated at trial because the nurse who conducted Z.H.’s sexual assault 

 

1 Lichen sclerosis et atrophicus is a chronic skin disease characterized by the eruption of flat white hardened 

papules. Merriam-Webster Online Medical Dictionary, http://www.merriamwebster.com/medical/lichen%20sclerosus%20et%20atrophicus (last visited Mar. 3, 2016).
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examination testified “the only cause” of Z.H.’s injuries was “[p]enetrati[on] 

inside her female sex organ.” Transcript of Trial at 353. The nurse found 

Z.H.’s injuries to be consistent with Z.H.’s account of the molestation and

explained to the jury why she believed the injuries were caused by penetration 

as opposed to external blunt force trauma or diaper rash. The nurse also 

testified that she obtained Z.H.’s medical history prior to conducting the 

examination: “prior hospitalizations, any medicines that she currently [was] on, 

any medical conditions that she has.” Id. at 341. The nurse completed a 

medical history form, which lists attention deficit hyperactivity disorder and 

epilepsy as Z.H.’s previous medical history, but she did not offer specific details 

about Z.H.’s medical conditions when she testified at trial. 

[6] Sutton, by counsel, argued Dr. Guertin would be unable to form an opinion 

without additional information about the victim’s medical history, but Sutton 

conceded he did not know the extent to which such records were previously 

discovered. Post-conviction counsel could not locate Sutton’s file, and trial 

counsel could not remember the specifics of the case. Post-conviction counsel 

was consulting the State’s file, which contained some medical records but none 

that referenced the victim’s “official diagnosis.” Transcript of Hearing at 5.

[7] Following the hearing, the post-conviction court issued an order sustaining the 

State’s objection. Sutton filed a motion to certify the matter for interlocutory 

appeal pursuant to Indiana Appellate Rule 14(B). The post-conviction court 

certified its order quashing Sutton’s subpoenas on June 19, 2015, and we 

accepted jurisdiction over the appeal on August 7, 2015. 
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Discussion and Decision

A. Standard of Review

[8] “Post-conviction proceedings are civil proceedings in which the defendant must 

establish his claims by a preponderance of the evidence.” Wilkes v. State, 984 

N.E.2d 1236, 1240 (Ind. 2013). The proceedings are “governed by the same 

rules ‘applicable in civil proceedings including pre-trial and discovery 

procedures.’” Id. at 1251 (quoting Ind. Post-Conviction Rule 1(5)). Postconviction courts are given broad discretion in ruling on discovery matters,

however, and we affirm their determinations absent a showing of clear error 

and resulting prejudice. Id.

[9] Sutton’s petition for post-conviction relief alleges he received ineffective 

assistance of trial counsel. To establish a claim of ineffective assistance of 

counsel, a defendant must demonstrate (1) counsel’s performance was deficient, 

and (2) the deficient performance prejudiced the defense. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). Counsel’s performance was deficient if it 

fell below an objective standard of reasonableness based on prevailing 

professional norms. Id. at 688. Likewise, a defendant is prejudiced by counsel’s 

deficient performance only if “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id.
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B. Z.H.’s Medical Records

[10] Sutton contends he may have a viable claim for ineffective assistance of counsel 

because trial counsel possibly failed to investigate Z.H.’s medical history. Sutton

argues he is now entitled to discover Z.H.’s medical records because the records

may contain information that could provide an alternative explanation for Z.H.’s 

injuries. In the event the victim’s records did contain this sort of information, 

Sutton argues trial counsel would have presented the information to the jury had 

he known of the records, which could have resulted in Sutton’s acquittal. 

[11] Under the particular facts and circumstances presented here, we cannot say the 

post-conviction court’s ruling will result in prejudice to Sutton’s ineffective 

assistance claim. See Wilkes, 984 N.E.2d at 1251. Even assuming Z.H.’s 

medical records contain information that could provide an alternative 

explanation for Z.H.’s injuries, this evidence would not show counsel failed to 

adequately investigate, nor would it establish a reasonable probability that the 

result of the proceeding would have been different. See Strickland, 466 U.S. at 

694. As explained above, post-conviction counsel could not locate Sutton’s file, 

and trial counsel could not remember the specifics of Sutton’s case. And in

light of the testimony of the sexual assault nurse, who ruled out alternative 

explanations, as well as Z.H.’s disclosure of the abuse, we cannot say an 

alternative medical explanation would undermine our confidence in the 

outcome of Sutton’s trial.
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[12] Absent clear error and resulting prejudice, we do not disturb a post-conviction 

court’s discovery rulings. Wilkes, 984 N.E.2d at 1251. We see no resulting 

prejudice here and accordingly must affirm the post-conviction court’s order 

quashing Sutton’s subpoenas.

Conclusion

[13] The post-conviction court’s ruling will not prejudice Sutton’s ineffective 

assistance claim because evidence supporting an alternative medical 

explanation for Z.H.’s injuries would demonstrate neither deficient 

performance, nor prejudice to the defense sufficient to undermine confidence in 

the outcome of Sutton’s trial. We therefore affirm the post-conviction court’s 

order quashing Sutton’s subpoenas.

[14] Affirmed.

Barnes, J., and Altice, J., concur.