Court of Appeals of Indiana | Memorandum Decision 92A04-1703-PC-436 | July 5, 2017 Page 1 of 14

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

Steven H. Schutte

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Douglas Johnson,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

July 5, 2017

Court of Appeals Case No.

92A04-1703-PC-436

Appeal from the Whitley Circuit 

Court

The Honorable J. Brad Voelz, 

Special Judge

Trial Court Cause No.

92C01-1109-PC-91

Baker, Judge.
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[1] Douglas Johnson appeals the denial of his petition for post-conviction relief, 

arguing that the post-conviction court erroneously determined that he did not 

receive the ineffective assistance of trial counsel. Finding no error, we affirm.

Facts

[2] The underlying facts in this case, as described in Johnson’s direct appeal, are as 

follows:

H.C. and J.J. are extended relatives of Johnson’s wife. Between 

February 2007 and August 2008, H.C, then age fourteen to 

sixteen, stayed overnight at Johnson’s home. One night, she 

woke up and found that she was naked below the waist and that 

Johnson was touching her inappropriately. After that, Johnson 

allegedly had intercourse with her and told her not to tell anyone.

At Christmastime 2008, Johnson and his wife were babysitting 

eight-year-old J.J. When J.J. asked Johnson for a drink, he took 

her into a bedroom, pulled down her pants, fondled her, and 

placed his finger inside her vagina. He threatened to hurt her if 

she told anyone.

On March 12, 2009, H.C. told her school counselor that Johnson 

had molested her, and the police began an investigation. On 

March 14, 2009, J.J.’s parents learned of H.C.’s allegations, and 

J.J.'s father asked J.J. if anything “odd” or “weird” had ever 

occurred at Johnson’s home. Tr. at 59. J.J. began to cry 

hysterically, stating that Johnson had inserted his finger into her 

vagina when he was babysitting her. That day, J.J.’s parents 

notified the police. J.J. later indicated to Department of Child 

Services caseworker Jodie Hively that it was H.C.’s disclosures 

about Johnson that had prompted her to disclose her own 

molestation. Id. at 133. She testified that she was “scared” to tell 
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anyone but that she was “happy that [she] could get it out of [her] 

system.” Id. at 73.

Johnson v. State, No. 92A03-1004-CR-222, *1 (Ind. Ct. App. Jan. 14, 2011), 

trans. denied. 

[3] The State charged Johnson with Class A and Class C felony child molesting for 

the offenses related to J.J. and with Class B and Class C felony sexual 

misconduct with a minor for the offenses related to H.C. Johnson’s jury trial 

took place on March 3-5, 2010. At the close of the trial, the jury found Johnson 

not guilty of Class B felony sexual misconduct with a minor charge and guilty 

of the remaining three charges. The trial court merged the Class C felony child 

molesting conviction into the Class A felony child molesting conviction and, on 

March 29, 2010, sentenced Johnson to concurrent terms of thirty-six years for 

Class A felony child molesting and six years for Class C felony sexual 

misconduct with a minor. Johnson pursued a direct appeal. This Court 

affirmed and our Supreme Court denied transfer. Id.

[4] On September 14, 2011, Johnson filed a petition for post-conviction relief; on 

March 7, 2016, he filed an amended petition. Among other things, Johnson 

argued that he received the ineffective assistance of trial counsel. The postconviction court held an evidentiary hearing on August 4, 2016, and trial 

counsel testified at that hearing. On February 6, 2017, the post-conviction 

court denied Johnson’s petition. Johnson now appeals.
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Discussion and Decision

I. Standard of Review

[5] The general rules regarding the review of a ruling on a petition for postconviction relief are well established:

“The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

“When appealing from the denial of post-conviction relief, the 

petitioner stands in the position of one appealing from a negative 

judgment.” Id. To prevail on appeal from the denial of postconviction relief, a petitioner must show that the evidence as a 

whole leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. Weatherford v. 

State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the postconviction court in this case made findings of fact and 

conclusions of law in accordance with Indiana Post–Conviction 

Rule 1(6). Although we do not defer to the post-conviction 

court’s legal conclusions, “[a] post-conviction court’s findings 

and judgment will be reversed only upon a showing of clear 

error—that which leaves us with a definite and firm conviction 

that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d 

102, 106 (Ind. 2000) (quotation omitted).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).

[6] A claim of ineffective assistance of trial counsel requires a showing that: (1) 

counsel’s performance was deficient by falling below an objective standard of 

reasonableness based on prevailing professional norms; and (2) counsel’s 

performance prejudiced the defendant such that “‘there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the 
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proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444 

(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A 

reasonable probability arises when there is a ‘probability sufficient to undermine 

confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 

2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two 

prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. 

Ct. App. 2012).

II. Assistance of Trial Counsel

[7] Johnson raises three arguments with respect to the performance of trial counsel

at trial: (1) trial counsel was ineffective for deciding not to object to the 

admission into evidence of the victims’ recorded pretrial interviews; (2) he was 

ineffective for failing to object to vouching and drumbeat testimony; and (3) the 

cumulative impact of counsel’s allegedly deficient performance prejudiced 

Johnson.

A. Victims’ Recorded Interviews

[8] At Johnson’s trial, the State introduced into evidence the recorded interviews of 

H.C. and J.J. that were conducted by Columbia City Police Detective Tim 

Longenbaugh and Department of Child Services investigator Jodie Hively. 

H.C., J.J., Detective Longenbaugh, and Hively also testified during the trial. 

According to Johnson, trial counsel should have objected to this evidence 
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because it was inadmissible pursuant to hearsay rules and Indiana Code section 

35-37-4-6.1

[9] It is undeniable that these videotaped statements were inadmissible. At the 

post-conviction hearing, however, counsel testified that as a matter of strategy, 

he preferred that the statements be introduced into evidence. He wanted the 

jury to see those interviews, as he believed they showed that the girls were led 

and prodded by the interviewers and had made inconsistent statements. In 

counsel’s view, the recorded interviews could be used to attack the credibility 

and reliability of the victims’ trial testimony.

[10] Our Supreme Court has explained that “[f]ew points of law are as clearly 

established as the principal that ‘[t]actical or strategic decisions will not support 

a claim of ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind. 

2002) (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)). Even the best 

criminal defense attorneys may disagree on the best or most effective strategy in 

a particular case; consequently, courts must give great deference to counsel’s 

strategic decisions. Id. Therefore, we will not second-guess trial strategy unless 

it is so deficient or unreasonable as to fall outside of the objective standard of 

reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).

 

1 This statute provides that a statement or videotape made by a “protected person” is admissible under 

certain circumstances even if it would otherwise be excluded as hearsay. “Protected person” includes only 

children under the age of fourteen, I.C. § 35-37-4-6(c), meaning that this statute would not apply to 

seventeen-year-old H.C. And a foundation must be laid at a separate hearing for the admission of the 

videotape. I.C. § 35-37-4-6(e). Here, no such hearing occurred. 
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[11] Johnson directs our attention to authority establishing that we should not credit 

a strategic decision that “resembles more a post hoc rationalization of counsel’s 

conduct than an accurate description of their deliberations prior to sentencing.” 

Wiggins v. Smith, 539 U.S. 510, 526-27 (2003). The record belies Johnson’s 

contention that trial counsel’s testimony was a post hoc rationalization:

• During closing argument, counsel told the jurors that to evaluate 

credibility, they needed to examine what was said all along rather than 

focusing solely on what was said at trial. Trial Tr. p. 204.

• He told the jurors to listen to the interviews, noting that “[s]ome people 

might say, [counsel], why are you putting those [videos] into evidence? 

Because you [the jury] gotta get the whole context folks of what’s going 

on here.” Id. at 206.

• Trial counsel then spent the majority of his closing argument highlighting 

things that were said and done in the videos to argue that the victims 

were not credible:

• He pointed to a statement made by H.C. during her interview that the 

school resource officer “kind of bribed me by buying pop and some 

other things” to try “to get me to talk.” Id. at 135.

• He pointed to a statement made by J.J. during her interview that she 

had been told by her father that Johnson had “done it to somebody 

else.” Id. at 204-06.

• Counsel highlighted that H.C. was resistant to saying anything during 

her interviews, that she remained silent when asked to show where 

Johnson touched her, that she was subject to leading questions and 

prodding, and that the interviewers asked questions assuming 

something had happened and were the first to make suggestions that 

H.C. ultimately agreed with or never actually confirmed. Id. at 206-

16.

• He pointed to inconsistencies in H.C.’s statements regarding details 

such as whether clothes were on or off, or where Johnson’s hands 

were. Id. at 204-05, 208.
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• He also pointed to inconsistencies in J.J.’s statements about which 

finger Johnson used to penetrate her vagina and about whether or not 

Johnson had closed the bedroom door. Id. at 205, 217-19.

• Trial counsel argued that a “seed” was planted in J.J.’s head when 

she was told about what H.C. had said, that her statements during the 

interview sounded programmed, and that it was Hively who 

introduced certain ideas during the interview. Id. at 211, 216-19.

It is readily apparent that counsel did, in fact, make a strategic decision to 

highlight these videotaped statements to the jury. He wanted the jurors to see 

those videos so that he could use them to form his argument that the victims’ 

claims should not be believed. This was not a post hoc rationalization.

[12] Johnson also argues that, even if this was not a post hoc rationalization, it was 

a strategy that was unreasonable as a matter of law. We disagree. It is a 

reasonable trial strategy to admit a victim’s pretrial statements into evidence to 

use those statements to attack the victim’s credibility. See Hinesley v. State, 999 

N.E.2d 975, 982-84 (Ind. Ct. App. 2013) (holding that it was a reasonable 

strategic decision to allow admission of pretrial statements where counsel 

wanted to use those statements to show the molestation accusations were 

unreliable); Curtis v. State, 905 N.E.2d 410, 414-15 (Ind. Ct. App. 2009) (same). 

In our view, trial counsel’s strategy of attempting to undercut the reliability of 

the victims was eminently reasonable. Indeed, the jury acquitted Johnson of 

the second most serious charge he faced, suggesting that counsel’s strategy 

achieved some success. Under these circumstances, we find that the postconviction court did not err by concluding that Johnson did not receive the 
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ineffective assistance of trial counsel for the failure to object to the admission of 

these videos.

B. Vouching and Drumbeat Testimony

[13] Next, Johnson argues that trial counsel was ineffective for not objecting to 

alleged “vouching” and “drumbeat repetition” evidence. This is yet another 

area where counsel explained his strategy as a trial attorney. He told the postconviction court that he decides whether to object to testimony as a strategic 

matter during the course of a trial, depending on whether the testimony is really 

hearsay, whether it will hurt his case or is important enough to warrant an 

objection, and whether he thinks he can use it to help the argument he intends 

to make. PCR Tr. p. 14-18, 23-24. Trial counsel saves objections for things 

that truly matter, and if the witness is relaying the general nature of the 

accusation without going into detail, he generally believes that it is not worth an 

objection. Id. at 17-18. 

[14] The so-called drumbeat evidence consists of the following:

• Detective Longenbaugh testified that, during his interview with H.C., “I 

had just come out and ask[ed] her at one point if [Johnson] had sex with 

her and she told me yes.” Trial Tr. p. 82.

• Johnson asserts that Hively repeated H.C.’s and J.J.’s stories, but a 

review of her testimony shows that she was not asked by the State and 

did not testify as to what either child told her regarding Johnson’s sexual 

activity with them.

• J.J.’s father testified that when he asked J.J. whether anything odd had 

happened at Johnson’s house, J.J. began crying and said that Johnson 

had “touched her on her private area.” Id. at 59. Her mother testified 
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that J.J. was crying and said that Johnson had “touched her wrong.” Id.

at 52.

Initially, we note that in our view, this limited collective testimony does not 

constitute improper drumbeat evidence. See Norris v. State, 53 N.E.3d 512, 525-

26 (Ind. Ct. App. 2016) (noting that under certain circumstances, a drumbeat 

repetition of victim’s statements can prejudice a jury). But even if it did, this 

evidence is precisely the type of evidence to which trial counsel explained he 

strategically refrains from objecting. We cannot conclude that this evidence is 

so voluminous and prejudicial that this strategic decision was unreasonable as a 

matter of law, and we decline to second-guess counsel in this regard.

[15] The so-called vouching evidence consists of the following:

• Hively and Detective Longenbaugh each testified that the detective’s 

attempt to interview H.C. had not gone well because H.C. did not want 

to talk to him. They further testified that it had “gone better” when 

Hively interviewed H.C. because she was more willing to open up, 

though she remained reluctant to talk. Id. at 81-82, 84-85, 122-23.

• Hively was asked whether J.J. was “emotionally appropriate” during the 

interview. Hively responded, “I guess I don’t like that word. I don’t 

think there is an appropriate response for a child that’s been abused.” Id.

at 121.

• Hively was asked whether J.J. was afraid to correct her during the 

interview. Hively answered, “She would correct me if I got something 

wrong, because part of [the child interview process] is when a child says 

something, we repeat it and if I didn’t get it right, then she would correct 

me.” Id. at 120. She explained that this process was “important” 

because “it shows that we’re not leading the child[,] that she has no fear 

of saying, hey, this is wrong, that they’re being truthful during an 

interview.” Id.
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At the time of the trial, Indiana allowed “some form of vouching of child 

witness testimony in child molestation cases.” Hoglund v. State, 962 N.E.2d 

1230, 1235 (Ind. 2012).2 Specifically, at that time, witnesses were permitted to 

provide opinions that would “facilitate an original credibility assessment of the 

child by the trier of fact, so long as they do not take the direct form of ‘I believe 

the child’s story’ or ‘In my opinion the child is telling the truth.’” Lawrence v. 

State, 464 N.E.2d 923, 925 (Ind. 1984), overruled by Hoglund.

[16] With respect to the first statement, we cannot conclude that testimony 

explaining why H.C. was interviewed twice—because she would not talk to one 

interviewer but opened up to a second interviewer—was improper vouching. 

There was no suggestion that the second interview went better because H.C. 

told the truth the second time; instead, it went better because she was willing to 

engage with the interviewer and answer questions. Consequently, any 

objection made by trial counsel would have been overruled.

[17] With respect to the second statement, Hively did not say that J.J. was abused or 

that she believed J.J.’s statement. Instead, she was challenging the premise of 

the question and explaining that generally, one cannot draw any conclusions 

about whether children have been abused based on their emotional behavior 

 

2

Since that time, Indiana’s caselaw regarding vouching testimony in child molestation cases has evolved, but 

we must judge counsel’s performance on the basis of the law as it existed at the time of his representation of 

Johnson. E.g., Harrison v. State, 707 N.E.2d 767, 776 (Ind. 1999) (holding that an attorney will not be deemed 

ineffective for failing to anticipate a change in the existing law).
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during an interview. As this was not vouching testimony, had counsel objected, 

it would have been overruled.

[18] The third statement comes the closest to improper vouching testimony. Under 

the circumstances of this case, however, it would have been admissible in any 

event. As noted above, the primary defense strategy in this case focused on 

questioning the credibility of the victims and arguing that the children had been 

led by adults into making these accusations. Having utilized this strategy, the 

defense opened the door to testimony that Hively had not, in fact, led J.J. into 

making these accusations. Sampson v. State, 38 N.E.3d 985, 991-92 (Ind. 2015) 

(testimony regarding indications of coaching of a child molestation victim is 

inadmissible unless defense opens the door by raising questions of victim 

credibility by suggesting victim was led or coached by others).

[19] Johnson argues that he made only a “general impeachment” of the witnesses’ 

credibility, which did not open the door to Hively’s testimony. But counsel 

argued, among other things, that H.C. was bribed to make statements, that both 

children were asked leading questions by various adults, and that a seed was 

planted in J.J.’s mind when her father and others made various statements. 

This strategy goes beyond a general impeachment and clearly opened the door 

to Hively’s testimony that, during the interview, J.J. would correct her and she 

did not lead the child into making accusations. Consequently, had trial counsel

objected to this testimony, it would have been overruled.
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[20] Finally, we note that even if any of this testimony constituted improper 

vouching, Johnson cannot establish prejudice given the overwhelming evidence 

of his guilt. Two female children, who had no opportunity to conspire together 

and had no motive to lie, independently accused Johnson of engaging in sexual 

acts with them while they were in his care. Furthermore, Johnson agreed to 

undertake a polygraph test, which indicated deception and was admitted into 

evidence. The challenged testimony is brief in nature, was not unduly 

emphasized during the trial, and was not even referenced by the prosecutor 

during closing argument. Under these circumstances, we cannot conclude that 

there was a reasonable probability the result of the trial would have been 

different had this testimony been excluded.

C. Cumulative Impact

[21] Finally, Johnson contends that the cumulative impact of counsel’s errors is 

prejudicial and, had counsel conducted the trial in a different manner, there is a 

reasonable probability that Johnson would have been acquitted. See Smith v. 

State, 511 N.E.2d 1042, 1046 (Ind. 1987) (holding that it is proper for the court 

to consider the cumulative impact of counsel’s errors). Here, we have not 

found that trial counsel committed any errors. Instead, it appears to us that trial 

counsel defended Johnson vigorously and intelligently, especially given the 

weight of evidence against Johnson—including the polygraph examination, 

with which he agreed to participate before counsel was his attorney. 

Notwithstanding the evidence against Johnson, trial counsel was able to 

convince the jurors to acquit his client of the second most serious charge he 
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faced. In short, the post-conviction court did not err by finding that Johnson 

did not receive the ineffective assistance of trial counsel.

[22] The judgment of the post-conviction court is affirmed.

Barnes, J., and Crone, J., concur.