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.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

SAMMIE L. BOOKER-EL GREGORY F. ZOELLER

Michigan City, Indiana Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

SAMMIE L. BOOKER-EL, )

)

Appellant-Defendant, )

)

vs. ) No. 48A02-1304-CR-366

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT 

The Honorable Angela Warner Sims, Judge

Cause No. 48C01-0112-CF-398

April 28, 2014

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

Sammie L. Booker-El appeals from the denial of his motion for relief from judgment 

and motion to correct error contending that the trial court erred by denying his motions. 

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts supporting Booker-El’s convictions were set forth in our opinion affirming 

his convictions in his direct appeal and in our memorandum decision affirming the denial 

of his petition for post-conviction relief as follows:

Felicia Chapman hired Booker to care for her two daughters—D., age seven 

and D.H., age six—in November 2001. On December 22, 2001, D. 

complained of a burning sensation when she urinated. The following day, 

D. was in severe pain, so Chapman’s ex-husband took D. to the hospital. In 

the emergency room, a yellow vaginal discharge was noticed, and part of the 

discharge was taken as a sample to be tested. The laboratory reported that 

gonorrhea was present in the discharge. In response to some questions, D. 

told a treating nurse that “Sammie” had come into her bed at night. When 

the nurse asked D. if “Sammie” had touched her where he should not have, 

D. replied in the negative. However, a family case manager from the 

Madison County Division of Family and Children—called by hospital 

personnel—interviewed D.D. told the case manager that Sammie—and no 

one else—had touched her private areas. Hospital personnel ran tests on 

D.H., which showed that she was infected with gonorrhea as well. Chapman, 

her husband, and Booker were tested for gonorrhea, but only Booker tested 

positive for the disease.

On December 26, 2001, Anderson Police Department Detective Heather 

McClain interviewed Booker. During the interview, which was videotaped, 

Booker admitted to Detective McClain that his finger may have 

“accidentally” entered D.’s or D.H.’s vagina while the girls wrestled with 

him. State’s Ex. 9. Booker, however, denied intentionally touching them 

inappropriately.

On December 27, 2001, the State charged Booker with child molesting. The 

charges alleged that Booker had performed criminal deviate conduct on D. 

on two occasions and on D.H. on one occasion by digitally penetrating their 

vaginas. Thereafter, Booker moved that the counts against him be severed 

for separate trials. Booker argued that he had an absolute right to severance 
3

of the counts because the offenses were joined solely because they were of 

the same or similar character. The trial court denied Booker’s request.

On June 14, 2002, Booker’s court-appointed public defender filed a petition 

with the trial court requesting funds—because of Booker’s indigency—for a 

child psychologist to assist him in preparing a defense. Specifically, Booker 

asked “that a child psychologist trained and experienced in interviewing 

assess the credibility of the alleged victims and the reliability of their 

statements.” Appellant’s App. p. 14. Again, the trial court denied Booker’s 

request.

At a jury trial commencing June 25, 2002, D. and D.H. testified that Booker 

had been their babysitter. Tr. p. 130, 145. The girls testified that Booker had 

placed his finger in their vaginas while they were in bed. Tr. p. 134, 135, 

146, 147.

Booker was found guilty of all counts. Thereafter, the trial court sentenced 

Booker to twenty years for each count, with counts I and II to run 

consecutively and count III to run concurrent to counts I and II. Thus, 

Booker’s total sentence was forty years.

Booker v. State, 790 N.E.2d 491, 493-94 (Ind. Ct. App. 2003), trans. denied. 

Booker’s appellate counsel raised the following issues: (1) whether the trial 

court erred in denying Booker’s request to sever the charges; (2) whether the 

trial court abused its discretion in denying the appointment of the expert 

witness; and (3) whether Booker’s sentence was inappropriate. Id. at 492–

93. On June 18, 2003, we affirmed Booker’s convictions and sentence, and 

our supreme court denied his petition to transfer.

On July 25, 2003, Booker filed with this Court a pro se petition for a copy of 

the record of proceedings. On August 14, 2003, this Court issued an order 

granting permission to the Indiana Public Defender to withdraw a copy of 

the transcript for the purpose of copying it, after which it could be transmitted 

to Booker for his review. The order further states that if the public defender 

had agreed to serve as Booker’s counsel and that if Booker wished to 

continue to be represented by the public defender, then Booker was not 

entitled to a copy of the record of proceedings at public expense, and the 

public defender was relieved of any obligation to make a copy of the record.

On December 22, 2003, Booker filed a pro se petition for post-conviction 

relief. On June 10, 2005, Booker filed an amendment to the petition. On 

August 17, 2005, Booker filed with this Court a verified motion to withdraw 

the record and for an order instructing the clerk to transmit the record to the 

trial court for use in the post-conviction proceedings. On September 6, 2005, 

this Court issued an order that reads in pertinent part as follows:
4

The Court having examined said Motion and being duly advised, now finds 

that the same should be denied as prayed.

If the trial judge determines that he needs to review the record of the

proceedings from the Appellant’s prior, direct appeal, in order to rule upon 

the Appellant’s Petition for Post-Conviction Relief, this Court will entertain 

a similar motion by the trial court. Appellant’s App. at 64.

The post-conviction court held evidentiary hearings on November 10, 2005, 

March 3, 2006, and June 30, 2006. On April 28, 2006, Booker filed without 

permission an additional amendment to his petition, which was stricken by 

the post-conviction court on the State’s motion. On August 25, 2006, the 

post-conviction court entered findings of fact, conclusions of law, and an 

order denying Booker’s petition.

On May 10, 2007, Booker filed his pro se appellant’s brief and appendix. On 

the State’s motion, this Court ordered Booker to file a supplemental 

appendix, which he did on September 18, 2007. On October 29, 2007, the 

State filed its appellee’s brief. On December 4, 2007, Booker filed a pro se 

brief with white covers entitled “Brief of Appellant”; we presume that 

Booker intended this to be a reply brief. Because Booker filed this brief well 

beyond the fifteen-day limit mandated by Indiana Appellate Rule 45(B)(3),2 

we hereby sua sponte strike the brief as untimely and will not consider it in 

this appeal.

Booker v. State, No. 48A05-0609-PC-534, slip op. at 2-3 (Ind. Ct. App. April 16, 2008). 

Booker-El filed a motion for relief from judgment pursuant to Indiana Trial Rule 

60(B), which the trial court denied on February 21, 2013. The trial court denied BookerEl’s motion to correct error on March 6, 2013. Booker-El now appeals.1

 

DISCUSSION AND DECISION

The State correctly observes that Booker-El’s brief fails to comply with the Indiana 

Rules of Appellate Procedure and that Booker-El fails to present a cogent argument in 

 

1 We note that Booker-El filed a Motion to Strike Appellee’s Brief, which was postmarked on 

February 4, 2014. However, we notified Booker-El that the motion was defective for lack of the requisite 

number of copies of the motion (an original plus five copies per Indiana Appellate Rule 23(C)(3)(b)). 

Booker-El has not cured the defect within the timeframe set forth pursuant to a standing order of the Indiana 

Supreme Court dated February 22, 2012 (no later than twenty business days from the date of the notice for 

incarcerated individuals proceeding pro se). Nevertheless, we find Booker-El’s motion to be without merit.
5

support of his claims on appeal. As is pertinent to this situation, an appellant can waive 

appellate review of his claims by failing to present an adequate record on appeal. 

Thompson v. State, 761 N.E.2d 467, 471 (Ind. Ct. App. 2002). Another manner in which 

an appellant waives appellate review of his claims is by failing to present a cogent 

argument. Indiana Appellate Rule 46(A)(8)(a) requires that appellate arguments and 

contentions are supported by coherent reasoning with citations to authority. The failure to 

present cogent argument or citation to authority constitutes waiver of the issues for 

appellate review. Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005). BookerEl’s brief is devoid of cogent reasoning and argument such that we conclude his claims 

have been waived for purposes of appellate review.

Assuming without deciding that Booker-El’s arguments have not been waived, we 

conclude that they are barred by the doctrine of res judicata. “Res judicata prevents the 

repetitious litigation of disputes that are essentially the same.” Wright v. State, 881 N.E.2d 

1018, 1021 (Ind. Ct. App. 2008). Furthermore, res judicata dictates that a judgment on the 

merits is an absolute bar to a subsequent action between the same parties or those in privity 

with them on the same claim or demand. Smith v. State, 825 N.E.2d 783, 789 (Ind. 2005). 

“The doctrine of res judicata is divided into two branches: claim preclusion and issue 

preclusion.” Wright, 881 N.E.2d at 1022. “Issue preclusion, which is also referred to as 

collateral estoppel, precludes relitigation of issues actually and necessarily decided in an 

earlier litigation between the same parties or those in privity with the parties.” Scott v. 

Scott, 668 N.E.2d 691, 699 (Ind. Ct. App. 1996). Additionally, a party cannot escape the 
6

effect of claim preclusion merely by using different language in framing the issue and 

defining the alleged error. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).

Here, from what we can discern of Booker-El’s claims, many of those claims were 

claims raised in his petition for post-conviction relief and his appeal from the denial of that 

petition. For example, he raised claims involving the calling of witnesses, the admission 

of medical evidence and medical testimony, and arguments related to the case law of Davis 

v. Mississippi, 394 U.S. 721 (1969). Any of the additional claims presented by Booker-El, 

to the extent they may be understood, were available to him in the context of his petition 

for post-conviction relief or on direct appeal. The scope of relief provided to petitioners 

for post-conviction relief under Indiana Post-Conviction Rule 1(1) is limited to issues that 

were not known at the time of the original trial or that were not available on direct appeal. 

Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001). “Issues available but not raised on direct 

appeal are waived, while issues litigated adversely to the defendant are res judicata.” Id. 

Booker-El has failed to show that the trial court erred by denying his motions. 

Affirmed. 

MAY, J., and BAILEY, J., concur.