Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 1 of 37

ATTORNEY FOR APPELLANT

Lisa Johnson

Brownsburg, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Indiana Attorney General

Indianapolis, Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Steven E. Malloch,

Appellant-Petitioner, 

v.

State of Indiana, 

Appellee-Respondent

November 16, 2023 

Court of Appeals Case No.

22A-PC-2053 

Appeal from the DeKalb Superior

Court

The Honorable Monte L. Brown,

Judge

Trial Court Cause No. 

17D02-1401-PC-000001 

Opinion by Judge May

Chief Judge Altice and Judge Bradford concur.

May, Judge. 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 2 of 37

[1] Steven E. Malloch appeals following the denial of his petition for postconviction relief. Malloch presents one issue, which we revise and restate as

whether the post-conviction court erred when it determined Malloch’s trial 

counsel did not provide ineffective assistance when he did not present expert 

testimony regarding:

1. the susceptibility of individuals to give false confessions; and

2. a sleep disorder called sexsomnia.

We affirm.

Facts and Procedural History

[2] On direct appeal, we recited the pertinent facts regarding Malloch’s underlying 

criminal conviction as follows:

In 1998, Malloch began living with Anita Malloch and her fouryear-old daughter C.P., who was born in 1993. Malloch and 

Anita married in 1999 and subsequently had three sons. C.P. had 

regular parenting time with her biological father but primarily 

lived in the Malloch home. She called Malloch “Dad.”

In 2003 and 2004, when C.P. was in fourth grade, the family 

lived in Auburn, Indiana, next to a cemetery. C.P. was 

sometimes scared at night because of the cemetery and would ask 

Anita or Malloch to lie down with her. On one occasion when 

Malloch lay with C.P., she awoke with his hand underneath her 

shirt on her breast. Malloch appeared to be asleep. C.P. removed 

his hand, rolled over, and went back to sleep. She never talked 

with him about the incident.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 3 of 37

In June 2004, the family moved to a ten-acre property in Garrett, 

Indiana. They lived in a small apartment in a barn until March 

2005, when construction of their house was completed. At some 

point while they lived in the barn, C.P. watched a werewolf 

movie and was scared to go to bed. She first asked Anita to lie 

down with her, but when Anita told her she was busy, she asked 

Malloch. C.P. fell asleep in her bed with Malloch beside her. 

When she woke up, Malloch’s hand was in her underwear and 

his finger was in her vagina. Again, Malloch appeared to be 

asleep. C.P. pulled his hand out of her pants, crawled over him, 

and slept with her then-six-year-old brother in his bed. The next 

morning, Malloch asked C.P. why she ended up in her brother’s 

bed. C.P. answered, “[B]ecause.” She never asked him to lie 

down with her again.

At some point while the family still lived in the barn, Anita 

watched an episode of “Dr. Phil” about child molesting and 

asked C.P. whether she had ever been touched. C.P. told Anita 

what had happened with Malloch. When Anita confronted 

Malloch, he claimed that he did not know what Anita was 

talking about and that if anything had happened, it had happened 

while he was asleep.

Roughly five years later, Anita told her counselor about the two 

incidents. On January 22, 2010, Anita’s counselor reported the 

matter to Jennifer Hupfer, a caseworker for the Department of 

Child Services, who in turn notified Detective Donald Lauer of 

the DeKalb County Sheriff’s Department. Later that day, Hupfer 

and Detective Lauer went to the Malloch home and informed 

Malloch of the allegations. Malloch said he was asleep and woke 

up to find his finger in C.P.’s vagina. He agreed to go to the 

Sheriff’s Department for a formal interview and drove himself 

there.

Detective Lauer conducted two interviews with Malloch in his 

office. Before the first interview, Detective Lauer read Malloch 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 4 of 37

his Miranda rights, and Malloch indicated that he understood 

them, had no questions about them, and wished to talk. During 

this interview, Detective Lauer employed the two-part Reid 

Technique, which he later described at trial as the “gold standard 

of . . . police interviewing.” The first phase of the Reid Technique 

consists of nonaccusatory questioning. The interview then shifts 

to the second phase, where the questioner does most of the 

talking and claims that the investigation clearly shows that the 

suspect committed the crime. A questioner using the Reid 

Technique introduces “different minimizing themes,” in essence 

excuses or justifications, to make it easier and more comfortable 

for the suspect to admit to the crime.

In the first phase here, Detective Lauer explained that his job was 

to separate the “small percentage of people . . . who prey on 

people” from “average good guys, like you and me, who make a 

mistake . . . and . . . accept responsibility.” Malloch told 

Detective Lauer he was in bed with C.P. because she was scared, 

he woke to find his hand in her pants and his finger in her 

vagina, he pulled his hand out, and C.P. kicked him off the bed. 

He also admitted to the earlier incident, when his hand was 

underneath C.P.’s shirt on her breast, but claimed that he had 

woken up that way and thought she was asleep when he got up 

and went to his room.

Detective Lauer said he had to determine whether Malloch was 

asleep or not and whether he was a “bad guy” or “not so bad 

guy.” Malloch claimed he was being honest. Detective Lauer 

then asked if he had ever had sexual thoughts about C.P. 

Malloch responded, “No . .. . . I mean, she’s a pretty girl, and, 

you know—and she walks around in—in her underwear at times, 

and stuff like that, but I—I’m always like, ‘Put your clothes’—

you know, ‘Get clothes on,’ I—you know, that ‘You don’t need 

to be doing that.’” Detective Lauer asked Malloch about a 

polygraph test, and Malloch responded that he would be willing 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 5 of 37

to take the test. Malloch said he felt responsible for the incidents 

because he was the adult and being asleep was not an excuse.

Detective Lauer then said C.P. had told him that at some point 

she was “sitting downstairs like in her underwear and bra and 

stuff, kind of inappropriate, I think, I mean she shouldn’t of [sic] 

been doing that, I guess, I mean that’s on—that’s on her, I mean, 

she should . . . know better than to . . . be doing that.” Malloch 

later offered, “I would suppress the thought. You know, if—see 

her standing at the sink, or whatever, kind of a thing, you know, 

I—I would throw it out of my mind, I would say ‘That’s not 

right,’ you know.” Malloch explained how he would walk away 

from the situation and offered this vignette: “[T]wo months ago, 

or something, walking upstairs, to go to bed, and [C.P.]’s door is 

cracked, and she was standing there taking off her shirt, and I 

mean, I saw her breasts, but then I went to my room.” 

Detective Lauer asked whether, assuming Malloch was awake, it 

was “kind of just a spur of the moment type thing, or—some 

guys actually will sit and plot out a way[.] . . . I call those people 

. . . the one percenters, those luckily are the—the people that are 

few and far between.” Malloch claimed it would have been spur 

of the moment. Detective Lauer then left the room. This portion 

of the interview was about thirty minutes.

When Detective Lauer returned, he sat closer to Malloch and 

said, “[M]y investigation clearly shows that you touched her, and 

you were awake when you did that, this was a conscious thing 

that you did.” Malloch said that he woke up to it, but Detective 

Lauer said:

No, you were awake when you did it, . . . that was a 

conscious thing, . . . you were awake when you did that. 

Now, what I need to find out is certain other things like, 

was this a spur of the moment thing, you know, and that’s 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 6 of 37

what we need to talk about, because, like I said, I’ve got to 

figure out what kind of guy is Steve.

Detective Lauer offered many minimizing themes, including that 

it was good that the incidents occurred when C.P. was asleep 

because maybe she would not remember what happened, that 

C.P. was a pretty girl and was “walking around half naked,” that 

Malloch was a guy and was “gonna have those thoughts,” that 

maybe there were “tough things going on” in Malloch’s life at the 

time, and that maybe his wife “turned off the faucet and there 

wasn’t any, you know, sexual activity or something.” Malloch 

admitted that he was awake when he put his hand on C.P.’s 

breast:

DETECTIVE: So, what I want to know, I guess, is—is—I 

mean, I can just keep babbling here, but I need to know 

what’s going on—what was going on in your head when 

that happened., [sic] And, you were awake, don’t tell me 

you—because, you—you—

MR. MALLOCH: I—I—the hand in the shirt, yes.

Malloch claimed he touched C.P.’s breast to see if she was 

developing and said he was not sure if he was awake when he put 

his finger in her vagina:

MR. MALLOCH: I—with the hand thing, it was a—I 

mean, does she have boobs, kind of a thin[g], you know, 

at—at this age, and—

DETECTIVE: So, you were curious if she had breasts, 

or—

MR. MALLOCH: Yeah.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 7 of 37

DETECTIVE: What about the hands in the pants thing? 

You were not asleep.

MR. MALLOCH: Okay, maybe I was—I—

DETECTIVE: There’s no “maybe”—

MR. MALLOCH: No, no—

DETECTIVE: —you were either awake, you weren’t 

awake, that-I don’t want to dance around playing this 

game.

Later on, Detective Lauer asked Malloch how long his finger was 

in C.P.’s vagina, which led to Malloch saying for the first time 

that he was awake at the time, but which he then appeared to 

take back:

DETECTIVE: How long was your finger inside of her?

MR. MALLOCH: Two seconds, three seconds.

DETECTIVE: Okay. And, how do you know that?

MR. MALLOCH: I just—well, I mean, because I—when 

I—I still believe that I woke up from it. I—I understand 

you don’t believe it, but—and—and, I don’t know how I 

need-how I get that—or, how I get it out of myself, that I 

wasn’t asleep.

DETECTIVE: Maybe you’ve tried to convince yourself all 

these years that you—you were (sic) awake, that was a 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 8 of 37

conscious decision. That doesn’t happen—that doesn’t 

happen.

MR. MALLOCH: It happens to my wife, or with me and 

my wife.

DETECTIVE: I’ve talked to your wife. It doesn’t happen 

in your sleep. Your wife doesn’t believe it. I mean, I’m 

sorry to tell you that—that she doesn’t. Nobody’s gonna 

believe that—that story. And, what that—what that shows 

is, a young man unwilling to accept responsibility, that’s 

what that says to me, that’s what I recognize. And, all I 

want you to do here is tell the truth.

MR. MALLOCH: Okay.

DETECTIVE: That’s all I want, is the truth. And—and we 

investigate—

MR. MALLOCH: I laid down with her, and after she was 

asleep for a while, put my hand down her pants and 

touched her.

DETECTIVE: And, how long did you do that?

MR. MALLOCH: A few seconds.

DETECTIVE: Why just a few seconds?

MR. MALLOCH: Because, I—reality kicked in.

DETECTIVE: Was it that you woke up?
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 9 of 37

MR. MALLOCH: Well, see that’s what—

DETECTIVE: Yeah, I—I think you’re just playing games 

here.

MR. MALLOCH: Well, I—

DETECTIVE: I’m not trying—I’m not trying to tell you—

MR. MALLOCH:—you’re trying to tell me what I need to 

say.

DETECTIVE: No, I’m not tell—I will not tell you what to 

say. I am telling you, tell the truth.

Malloch claimed he was telling the truth. Detective Lauer stated 

that he had to determine whether Malloch was a pedophile or a 

pervert or whether he was a guy who made a mistake. When 

Malloch continued to say he was asleep, Detective Lauer called 

the claim “hogwash.” He also said that Malloch was “not man 

enough to accept responsibility.” Soon after, Detective Lauer told 

Malloch he could tell his story to a jury, and Malloch admitted 

for a second time that he was awake when he put his finger in 

C.P.’s vagina:

DETECTIVE: That may be what you’ve tried to convince 

yourself all this time, but—and, I’ll tell you what, Steve, 

I’m not gonna spend much more time here listen—

listening to this, because I will just arrest you and you can 

go into court and you can tell 12 people—first of all, you 

can make your daughter get up and testify against you, 

and then you can tell 12 people, ‘Yes, I was sleeping, and I 

woke up, and my hand was inside her vagina. Oh, and by 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 10 of 37

the way, I also stuck my hand up her shirt to make sure 

she had breasts.’

MR. MALLOCH: And, so I laid down with her, and 

woke up, put my hand down her pants, realized it was 

wrong, pulled my hand out, and she woke up at that point 

and kicked me out of bed.

DETECTIVE: Is that true, or are you just trying to—I 

want to know what the truth is. I don’t want to put words 

in your mouth, I want to hear you tell me what happened, 

what was going through your head when that happened. 

Because, that’s what’s important, what’s going on up 

here—

MR. MALLOCH: Right.

DETECTIVE: —and what’s going on right now are the 

important things. Whether you’re man enough to accept 

responsibility, and show a judge that you’re remorseful, 

and how you show remorseful is by saying, ‘Yes, this is 

what I did, it’s never gonna happen again, I learned my 

lesson.’

However, Malloch later indicated that he was asleep: “I 

remember laying down, with my back to her, and I remember 

waking up, pulling my hand out of her pants, and getting kicked 

on to the floor, and then getting into my bed. I can’t remember 

the—initiating it. I cannot remember that.”

When Malloch continued to insist that he could not remember 

consciously putting his finger in C.P.’s vagina, Detective Lauer 

said, “You know why you can’t remember it . . . it’s dawning on 

me now, because you’re one of the one percenter guys.” He also 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 11 of 37

said, “You don’t have the stones to say it, that’s the problem.” At 

the conclusion of the interview, Detective Lauer arrested 

Malloch and told him he would come back in if Malloch wanted 

to talk further. The entire first interview was about an hour and 

twenty-five minutes.

Detective Lauer turned Malloch over to Jeremy Heffelfinger, the 

intake officer, and had nothing to do with where he was placed in 

the jail. It took about an hour for Malloch to go through the 

intake process and make a phone call. Heffelfinger then placed 

Malloch twenty feet from his desk in a cell with Jeffrey Cain, an 

accused murderer. Heffelfinger placed Malloch there so he could 

monitor any shock Malloch might have from being in jail for the 

first time and being charged with a severe crime. It was also the 

only available space. Although one other holding cell had just 

one man in it, that person was a trouble maker, which was in 

stark contrast to Cain, who had never caused any problems in the 

year and a half that he was at the jail.

Heffelfinger monitored Malloch the entire time he was in the cell. 

He did not notice any problems or tension between Malloch and 

Cain, and neither inmate indicated there were any problems. 

About four hours after Malloch’s first interview ended, Cain got 

Heffelfinger’s attention and said that Malloch wanted to speak 

with him. Malloch asked to speak with Detective Lauer.

Malloch was escorted out of the jail and back to Detective 

Lauer’s office. Detective Lauer again read Malloch his Miranda

rights, and Malloch indicated that he understood them. Malloch 

then asked if he was “best advised to speak to a lawyer.” 

Detective Lauer said that it was Malloch’s decision and that he 

could not guide him one way or the other. After a brief 

discussion, Malloch said, “I’ll talk.” Detective Lauer was not 

accusatory during this second interview. Malloch said that he 

had “not good thoughts” about C.P. since 2003. He then 

admitted he was awake and consciously fingered C.P.:
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 12 of 37

MR. MALLOCH: But, it happened to be—yeah, I didn’t 

want to hurt her, she happened to be asleep, and I failed to 

control myself. 

DETECTIVE: So, can you tell me then what happened 

that particular day? 

MR. MALLOCH: I remember—yeah, laying down—

falling asleep, waking up, and this has come to me as I’m 

laying out there, put my—curious, or whatever, put my 

hand down there, she stirred, pulled my hand out, and 

then had gotten kicked out of the bed.

Detective Lauer gave Malloch an opportunity to write C.P. a 

letter of apology.

The State charged Malloch with two counts of child molesting, 

one as a Class A felony and one as a Class C felony. In 

December 2010, Malloch moved to dismiss the Class C felony on 

the basis that it was filed beyond the statute of limitations period 

and moved to suppress his statements to Detective Lauer on the 

basis that they were involuntarily made. After a hearing, the trial 

court dismissed the Class C felony and denied the motion to 

suppress.

Malloch v. State, 980 N.E.2d 887, 892-97 (Ind. Ct. App. 2012) (internal Record 

citations and footnote omitted), trans. denied. The trial court held Malloch’s first 

jury trial in June 2011. Malloch did not present any expert testimony during 

the first jury trial, and the jury deadlocked. The trial court declared a mistrial 

and immediately scheduled Malloch’s retrial for September 12, 13, and 14, 

2011.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 13 of 37

[3] On September 1, 2011, the parties took a discovery deposition of Dr. Neeraj 

Kaplish, a physician and clinical assistant professor at the University of 

Michigan, in Ann Arbor, Michigan. An associate general counsel with 

University of Michigan Health Systems represented Dr. Kaplish during the 

deposition. Dr. Kaplish testified regarding his curriculum vitae. He had 

completed two fellowships in sleep medicine and published on the topics of

parasomnias and narcolepsy. He also explained that parasomnias “are 

unprovoked, unpleasant, complex motor behaviors that can occur out of sleep.” 

(D.A. State’s Ex. 1 at 38.)1

 For example, Dr. Kaplish observed that 

sleepwalking is an example of a parasomnia, and he explained that certain 

conditions, like sleep apnea, predispose someone to experience parasomnia. 

He also stated that sexsomnia is another type of parasomnia, and he described 

sexsomnia as “behavior at upper level sleep [that] has sexual connotation.” (Id.

at 10.) The activity “could range from sexual frantic moaning and groaning, to 

self-stimulation, to sexual assault and sexual intercourse.” (Id. at 34.) Dr. 

Kaplish also explained that while he had read peer-reviewed articles about 

sexsomnia, he had not published on the topic, nor had he conducted any 

studies regarding sexsomnia. Dr. Kaplish’s knowledge was limited to his 

review of the literature, and he did not know whether scientists had observed 

sexsomniac behavior in a lab setting or whether any rate of error had been 

1 This citation refers to State’s Exhibit 1 in the record of Malloch’s direct appeal and entered into evidence by 

the State during the September 9, 2011, hearing on Malloch’s motion to continue his trial. Page number 

citations are to the page numbers listed on the deposition transcript.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 14 of 37

established for the diagnosis. Dr. Kaplish also was not aware of what 

percentage of the general population had been diagnosed with sexsomnia.

[4] Dr. Kaplish reported he had consulted with Malloch for the first time in 

February of 2010 after Malloch’s doctor in Fort Wayne referred Malloch to Dr. 

Kaplish. Dr. Kaplish ordered that Malloch undergo two sleep studies and 

found that Malloch had sleep apnea. Dr. Kaplish subsequently diagnosed 

Malloch with sexsomnia. Dr. Kaplish explained that Malloch was the only 

patient he had ever diagnosed with sexsomnia. Dr. Kaplish also acknowledged 

he relied on the personal history Malloch relayed to him in diagnosing Malloch 

and his diagnosis could be incorrect if Malloch had lied to him. 

[5] Malloch’s trial counsel, John Bohdan, asked Dr. Kaplish if he received the

Indiana subpoena Attorney Bohdan had sent him regarding Malloch’s trial. 

Dr. Kaplish acknowledged receipt of the subpoena, but he stated he was not 

sure if he would be available to testify at the time of Malloch’s trial. Dr. 

Kaplish’s attorney conveyed he would keep Attorney Bohdan apprised of Dr. 

Kaplish’s availability.

[6] Once Attorney Bohdan definitively learned Dr. Kaplish was not available to 

testify at Malloch’s trial, he filed a motion to continue the second trial. During 

a hearing on the motion on September 9, 2011, Attorney Bohdan explained he 

filed the continuance because Dr. Kaplish was unavailable to testify, and Dr. 

Kaplish had “offered the diagnosis that Steven Malloch does experience 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 15 of 37

parasomnia and specifically sexsomnia[.]” (D.A. Tr. Vol. I at 185.)2

 Attorney 

Bohdan described Dr. Kaplish’s testimony as “critical[.]” (Id.) He observed:

[W]e had roughly ninety (90) days between the last trial and the 

currently scheduled trial and very early on in that process . . . as 

Mr. Malloch and I assessed what had happened in the first trial 

and assessed how to approach it in the second trial it became 

clear to us that the testimony of Dr. Kaplish . . . is more than 

adjunct or some little corollary testimony, it has a real value and 

a real importance in this case. He had been previously identified 

as a potential witness. Obviously, he wasn’t called in the first 

trial . . . but we made the decision then that we need to call him 

in the second trial.

(Id. at 186.) Attorney Bohdan noted that Dr. Kaplish’s deposition for discovery 

purposes occurred on September 1, 2011, and he stated that “at that time and 

pretty much almost every business day since that deposition I have struggled . . 

. to try to . . . get an answer as to availability for a live appearance at trial in this 

cause or in the alternative to coordinate an evidentiary deposition.” (Id. at 

187.) The State opposed Malloch’s motion to continue. The State summarized

the confession Malloch gave to Detective Lauer, and the State pointed to 

portions of Dr. Kaplish’s deposition testimony where Dr. Kaplish admitted the 

limits of his knowledge about sexsomnia. The State also noted that Dr. Kaplish 

lived and practiced in Michigan and Attorney Bohdan failed to follow the 

2 We will refer to the Transcript produced for Malloch’s direct appeal of his conviction as “D.A. Tr.” In 

contrast, we will designate the Transcript produced from Malloch’s post-conviction proceedings as simply 

“Tr.” 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 16 of 37

proper procedure for subpoenaing an out-of-state witness. The trial court 

denied Malloch’s motion to continue.

[7] Malloch’s second trial began on September 12, 2011. In his opening statement, 

Attorney Bohdan laid out Malloch’s theory of the case, which was that Malloch

“was badgered, pressured, tricked, cajoled, and coerced” into giving a false 

confession, (D.A. Tr. Vol. II at 351), and that he was asleep when his hand

penetrated C.P.’s vagina. Attorney Bohdan explained:

The evidence will show that the statements that the State seeks to 

build its case around . . . were not voluntary, were not valid and 

were not true and you’ll be able on seeing these to see the signs 

that show you how that is possible, how that came to be. It will 

show these statements to be products of a clever interviewing 

technique. The State tells you well, this is generally referred to as 

[Reid] techniques of interviewing. You’ll see the evidence that 

whether intentionally done or not these techniques produce 

unreliable, inaccurate and untrue statements.

(Id. at 357.) 

[8] C.P. testified that when she was approximately eleven years old, she lay down 

with Malloch in a twin bed after watching a scary movie and fell asleep. She 

“woke up with his hand in [her] underwear and his finger in [her] vagina.” (Id. 

at 374.) “[C.P.] looked at him and his eyes were shut and then [C.P.] removed 

his hand from [her] underwear.” (Id. at 375.) C.P. then left the twin bed and 

slept the rest of the night next to her brother in her brother’s bed. 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 17 of 37

[9] Detective Lauer testified that he employed the Reid Technique in interrogating 

Malloch. The State played videos of Detective Lauer’s interrogations of 

Malloch for the jury, and Attorney Bohdan questioned Detective Lauer about 

his interrogations of Malloch. During this questioning, Detective Lauer 

admitted he challenged Malloch’s statements that he did not remember 

inserting his finger into C.P.’s vagina or that he was asleep when it occurred, 

but Detective Lauer did not challenge Malloch’s statements when Malloch 

stated he was awake. Attorney Bohdan also questioned Detective Lauer about 

discrepancies between what C.P. said happened and Malloch’s confession. In 

addition, Attorney Bohdan asked Detective Lauer about his training in the Reid 

Technique, and Detective Lauer explained: “To be honest, I don’t think in the 

class we spent a whole lot of time on false confessions.” (Id. at 492.) Detective 

Lauer also testified that his understanding was that “false confessions are 

typically . . . done by people who are mentally ill or a very low IQ[.]” (Id.) 

[10] Malloch testified that he generally slept in the same bed as his wife, Anita 

Malloch. He explained:

[Attorney Bohdan:] Specifically as to what you would have 

personal knowledge, not what somebody else may have told you, 

uh, what do you know about your own practice or habits when it 

comes to touching your wife?

[Malloch:] I have woken up, uh, you know, again, I was messing 

around with her vagina, uh, and when I would wake up to that I

[sic] would usually lead to intercourse or, um, and go back to 

sleep.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 18 of 37

(D.A. Tr. Vol. III at 550.) 

[11] With respect to the incident in which Malloch’s finger penetrated C.P.’s vagina, 

Malloch testified:

Um, I recall waking up and my recollection is, uh, waking up 

and my hand was, realizing that it was [C.P.] that I was next to, 

my hand was down her pants and my finger was touching her 

female sex area. Uh, and pulling my hand out and I remember 

getting kicked out of bed.

(Id. at 553.) Malloch denied intentionally touching C.P.’s vagina. Malloch 

stated that when he tried to explain to Detective Laurer that he was asleep 

when he touched C.P., Detective Laurer did not believe him, and he described 

the interrogation as “very emotionally draining and physically draining[.]” (Id. 

at 563.) Malloch testified that he was “in shock” after being arrested and felt 

“[h]umiliated.” (Id. at 567.) Malloch further explained:

[Attorney Bohdan:] Why did you ask to speak to [Detective 

Lauer] again? 

[Malloch:] Cause I didn’t want to be, I didn’t want to be 

classified as this one percenter. I didn’t want, uh, I felt in order 

to not be this one percenter, to because he wasn’t going to write 

in a report that I was this good guy that, uh, made a mistake and 

give that to the Prosecutor instead he’d write that I denied 

everything and he’s this bad guy, um, I wanted my report to be 

favorable.

(Id. at 572-73.) Malloch testified that he believed he suffered from sexsomnia. 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 19 of 37

[12] Anita Malloch stated that Malloch “will fondle [her] vagina or [her] vaginal 

area in the night while we are asleep.” (Id. at 636.) Anita Malloch testified that 

she initially told Detective Lauer she was not sure she believed Malloch’s claim 

that he was asleep when he fingered C.P. because she “was convinced that day 

by [her] counselor that it cannot happen in your sleep and that [she] should be 

concerned for [her] boys.” (Id. at 674.) 

[13] The jury returned a guilty verdict, and the trial court held Malloch’s sentencing 

hearing on November 28, 2011. The trial court sentenced Malloch to a term of 

thirty years. The trial court ordered Malloch to serve twenty-eight years in the 

Indiana Department of Correction, and the trial court suspended the remaining 

two years of his sentence to probation. 

[14] Malloch appealed his conviction and raised five issues in his direct appeal:

I. Whether the trial court abused its discretion by denying 

Malloch’s motion for a continuance made three days before trial.

II. Whether the trial court erred by admitting Malloch’s 

statements in two videorecorded interviews, in which he 

ultimately confessed to the crime.

III. Whether it was fundamental error for the trial court to allow 

without admonishment the interrogating detective’s repeated 

assertions during the videorecorded interviews that Malloch was 

guilty.

IV. Whether the trial court erred by admitting Malloch’s apology 

letter to his stepdaughter.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 20 of 37

V. Whether the State committed prosecutorial misconduct 

amounting to fundamental error.

Malloch, 980 N.E.2d at 892. We held the trial court did not abuse its discretion 

in denying Malloch’s motion to continue the trial because there was no 

evidence Dr. Kaplish “was ever properly subpoenaed” and Dr. Kaplish “would 

not commit to appearing at trial.” Id. at 898. We also noted the crime had 

occurred seven years before the scheduled trial date and the trial court could not 

easily reschedule the trial due to court congestion. Id. We further held 

Detective Lauer properly advised Malloch of his rights pursuant to Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), prior to interrogating him and 

Malloch did not make an unambiguous and unequivocal invocation of his right 

for counsel. Malloch, 980 N.E.2d at 900-01. We concluded Malloch’s 

statements were voluntary under both the federal and state constitutions. Id. at 

903. Likewise, we held the trial court did not err in admitting the apology letter 

Malloch wrote to C.P. Id. at 905. Lastly, we held two improper statements 

made by the State during its closing argument did not constitute fundamental 

error. Id. at 911. 

[15] On January 31, 2014, Malloch filed a petition for post-conviction relief and he 

filed an amended petition for post-conviction relief on April 18, 2019. Malloch 

alleged he received ineffective assistance of trial counsel because his attorney 

“failed to investigate the personal and psychological characteristics that made 

Mr. Malloch more vulnerable than other individuals to having given a false 

confession,” (App. Vol. II at 56), and “failed to hire or procure an expert able to 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 21 of 37

educate the jury regarding the sleep disorder that was Mr. Malloch’s principle 

defense, particularly as that disorder related to Mr. Malloch’s interrogation.”3

(Id. at 58.) 

[16] The post-conviction court held a bifurcated evidentiary hearing regarding 

Malloch’s petition on June 21, 2021, and January 28, 2022. Malloch called Dr. 

Michael Cramer Bornemann as an expert witness at the evidentiary hearing.

Dr. Bornemann, a physician and former assistant professor of neurology and 

internal medicine at the University of Minnesota, explained that parasomnias 

are “the unwanted and inappropriate . . . experiences or behaviors that arise 

from the platform of sleep.” (Tr. Vol. II at 11.) Common parasomnias include 

nightmares, sleepwalking, and sleep talking, but they “can also involve a 

complex set of behaviors that can have clinical or . . . forensic complications.” 

(Id.) Parasomnias result from “electrical switching errors” in the brain. (Id. at 

25.) A parasomnia is “essentially, a neurologic condition and not a psychiatric 

condition as Freud might lead us to believe.” (Id. at 14.) Dr. Bornemann 

testified that sexsomnia or “sleep related abnormal sexual behavior” is an 

internationally recognized parasomnia. (Id. at 30.) He explained that “stress 

and anxiety” and “sleep deprivation” make sexsomnia more likely, (id. at 32),

and an experienced health care provider is necessary to properly diagnose the 

3 Malloch also asserted in his petition that his trial counsel was ineffective because he did not object to 

statements made by the prosecutor during the State’s closing argument and that Malloch was entitled to postconviction relief because several jurors lied during voir dire. However, Malloch does not challenge on appeal 

the post-conviction court’s rulings against Malloch on these claims. 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 22 of 37

condition. Dr. Bornemann also testified on cross-examination by the State that 

he would be “concerned” if someone claiming to have suffered from sexsomnia 

had admitted to previously touching an underage girl’s bare breast. (Id. at 44.)

[17] Dr. Deborah Davis, a psychology professor at the University of Nevada and 

faculty member at the National Judicial College, also testified at the evidentiary 

hearing regarding her research into the psychology behind false confessions. 

Dr. Davis explained DNA evidence has exonerated many individuals who gave 

false confessions and, more than once, multiple individuals confessed to a crime

that only one person committed. She described how certain interrogation 

tactics lead to false confessions. She explained that an individual might falsely 

confess because of feelings of stress and a need to escape. In addition, someone 

might make a false confession if the interrogator convinces the person that 

confession is in the person’s best interest or if the person is overly deferential

toward authority figures. Dr. Davis explained that the Reid Technique was at 

one time the most popular interrogation technique used by law enforcement, 

but that psychologists began heavily criticizing the method in the 1990s. Dr. 

Davis explained that while the characteristics of youth, low intelligence, and 

mental illness may make an individual more vulnerable to giving a false 

confession, even people with “IQ’s [sic] higher than Einstein” have been proven 

to have falsely confessed. (Id. at 133.)

[18] Dr. Davis opined that Detective Lauer intended to make Malloch feel hopeless 

by characterizing Malloch’s claim to have been asleep as “ridiculous” and

saying “nobody’s gonna (sic) believe it.” (Id. at 89) (parenthetical in original). 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 23 of 37

Dr. Davis noted that Detective Lauer presented Malloch with two options and 

that each option assumed Malloch was guilty – “Steve the nice guy who made a 

mistake” versus “Steve the one percenter (1%) molester who doesn’t care about 

anybody and, you know, uh, [is] basically an evil person.” (Id. at 90.) Dr. 

Davis also discussed how an interrogator employing the Reid Technique will 

try to give a suspect “the illusion that this is a negotiation between the suspect 

and the interrogator that’s gonna (sic) determine his fate.” (Id. at 92-93)

(parenthetical in original). Dr. Davis pointed out that Detective Lauer 

suggested throughout the interrogation that he believed “Mr. Malloch is a nice 

guy who made a mistake. Um, but he also refers to the threat part . . . you 

know if you’re not gonna (sic) tell me the truth and just keep telling me this 

ridiculous story, I’m just outta (sic) here[.]” (Id. at 99-100) (parentheticals in 

original). 

[19] Attorney Bohdan also testified during the evidentiary hearing. He explained 

that he consulted with two experts regarding Malloch’s confession. Gerald 

Ofshe, a person “widely recognized as a coerced confession . . . expert,” did not 

produce a written opinion, but Attorney Bohdan “used some of the information 

that he gave . . . as it related to responding to the confession issues in the case.” 

(Id. at 153.) After the first trial ended in a hung jury, Attorney Bohdan 

attempted to get Dr. Kaplish to testify at the second trial, but the trial court 

refused Attorney Bohdan’s motion to continue and, ultimately, Attorney 

Bohdan did not call any expert to testify during the second trial. Attorney 

Bohdan testified:
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 24 of 37

[Malloch:] Um, did you believe, um, that having [an expert] 

would have been in Mr. Malloch’s best interest?

[Attorney Bohdan:] Well, if you’re referring to Dr. Kaplish, um, 

I don’t believe it would have harmed Mr. Malloch’s case, um, I 

can only speculate as to how much it would have assisted us. 

That particular witness was-I would characterize as a hybrid, uh,

fact expert witness. Um, he certainly has expertise in the 

administration of sleep studies, um, but in terms of the, the 

ultimate issue as to a diagnosis of parasomnia and sexsomnia, 

which was, uh, the core argument in our defense, I don’t think he 

was gonna (sic) be able to deliver that to us. But, but he could 

assist in getting the ball closer to the goal.

(Id. at 155-56) (parenthetical in original). Attorney Bohdan also characterized 

Dr. Kaplish as “not terribly cooperative.” (Id. at 156.)

[20] In addition, Attorney Bohdan consulted with Dr. Bornemann, but Attorney 

Bohdan decided not to call him to testify. Regarding Dr. Bornemann, Attorney 

Bohdan explained:

Um, there was- Mr. Malloch and I had enthusiasm for this 

witness, uh, I would credit Steve with finding this gentleman. 

Um, Steve was very involved in, uh, his defense and as I 

understood it, he had actually located this gentleman, uh, had 

communicated with him, um, and a [sic] preliminary indicators, 

um, were good for us. Um, this doctor was aware of the results 

of the sleep study, uh, which were supportive of a parasomnia 

diagnosis. Uh, this doctor was provided, uh, by my office, at his 

request, with copies of discovery materials, particularly, uh, the 

interviews that were conducted by local law enforcement of Mr. 

Malloch. Subsequent to his review of those, uh, records, um, I 

had at least one (1) communication with him by phone and he 

was indicating during that call, that he wasn’t gonna (sic) be able 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 25 of 37

to assist us given the nature of the statements in these interviews. 

I told him that our contention was that-uh, particularly the, what 

I’ll call the third interview, uh, which was the most damaging 

interview, uh, that that was – our contention was that was a 

coerced confession. That we were working, uh, to suppress that, 

um, that particular statement, uh, was deemed problematic for 

him to, to support us with an opinion. And that pretty much 

colored my thinking in terms of the ability or inability to use him 

as an expert witness in our case.

(Id. at 156-57.) Attorney Bohdan did not consult with Dr. Davis about false 

confessions prior to either of Malloch’s trials. Attorney Bohdan testified that he 

had never used a false confession expert in trying approximately 250 criminal 

cases over the course of his career. On August 8, 2022, the post-conviction 

court issued an order with findings of fact and conclusions of law denying 

Malloch’s petition for post-conviction relief because Malloch had not received 

ineffective assistance from Attorney Bohdan.

Discussion and Decision

[21] Our standard of review following the denial of a petition for post-conviction 

relief is well-settled:

A post-conviction petition is not a substitute for an appeal, nor 

does it afford a petitioner a super appeal. Post-conviction

proceedings afford petitioners a limited opportunity to raise 

issues that were unavailable or unknown at trial and on direct 

appeal. As post-conviction proceedings are civil in nature, the 

petitioner must prove his grounds for relief by a preponderance of 

the evidence. A party appealing a post-conviction judgment 

must establish that the evidence is without conflict and, as a 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 26 of 37

whole, unmistakably and unerringly points to a conclusion 

contrary to that reached by the post-conviction court. Where, as 

here, the post-conviction court makes findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction 

Rule 1(6), we do not defer to the court’s legal conclusions, but 

the 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.

Johnson v. State, 103 N.E.3d 704, 706-07 (Ind. Ct. App. 2018) (internal 

quotation marks and citations omitted), trans. denied.

[22] The Sixth Amendment to the United States Constitution provides that in all 

criminal prosecutions, a defendant is entitled “to have the assistance of counsel 

for his defense.” U.S. Const., Am. VI. This constitutional protection requires 

counsel’s assistance be effective. Strickland v. Washington, 466 U.S. 668, 686, 

104 S. Ct. 2052 (1984), reh’g denied. We presume trial counsel provided 

effective assistance, and the petitioner must present strong evidence to rebut 

that presumption. McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), 

trans. denied. “Isolated poor strategy, inexperience, or bad tactics does not 

necessarily constitute ineffective assistance of counsel.” Id. Rather, the 

petitioner must show both that his trial counsel’s performance was deficient and 

that he was prejudiced by the deficiency. Id. at 75. “When evaluating a 

defendant’s ineffective-assistance-of-counsel claim, we apply the wellestablished, two-part Strickland test. The defendant must prove: (1) counsel 

rendered deficient performance, meaning counsel’s representation fell below an 

objective standard of reasonableness as gauged by prevailing professional 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 27 of 37

norms; and (2) counsel’s deficient performance prejudiced the defendant[.]” 

Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019) (internal citation omitted). 

“To demonstrate prejudice, the defendant must show a reasonable probability 

that, but for counsel’s errors, the proceedings below would have resulted in a 

different outcome.” Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019), reh’g 

denied, cert. denied, 141 S. Ct. 553 (2020).

1. False Confession Expert

[23] Malloch asserts he was deprived of effective assistance of counsel when 

Attorney Bohdan failed to call an expert witness on false confessions. He notes 

that such expert witnesses were utilized by the defendants in both Miller v. State, 

770 N.E.2d 763, 774 (Ind. 2002) (holding trial court committed reversible error 

by excluding testimony from a psychological expert on coerced confessions), 

and Shelby v. State, 986 N.E.2d 345, 369 (Ind. Ct. App. 2013) (observing “that 

experts may testify on the general subjects of coercive police interrogation and 

false or coerced confessions”). Malloch contends “most lay people are not 

aware that false confessions happen. They do not understand the psychology 

behind modern police interrogation tactics or the ways in which those tactics 

can produce false confessions.” (Appellant’s Br. at 43) (internal footnote 

omitted). Therefore, he asserts “the jury was likely to view Malloch’s 

confession as extremely compelling proof of guilt. Expert testimony, regarding 

false confessions and the reasons they occur, was essential to Malloch’s 

defense.” (Id. at 44) (internal footnote omitted).
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 28 of 37

[24] However, when we evaluate a petition for post-conviction relief, we afford trial 

counsel “considerable discretion in choosing strategy and tactics, and these 

decisions are entitled to deferential review.” Bradbury v. State, 180 N.E.3d 249, 

252 (Ind. 2022), cert. denied, 143 S. Ct. 261 (2022). The Sixth Amendment

requires reasonable competence, not a perfect trial strategy judged with the 

benefit of hindsight. Id. “A decision regarding what witnesses to call is a 

matter of trial strategy which an appellate court will not second-guess[.]” Brown 

v. State, 691 N.E.2d 438, 447 (Ind. 1998). “Rare are the situations in which the 

wide latitude counsel must have in making tactical decisions will be limited to 

any one technique or approach.” Harrington v. Richter, 562 U.S. 86, 106, 131 S. 

Ct. 770, 789 (2011) (internal quotation marks omitted).

[25] Attorney Bohdan explained in his opening statement that Malloch’s defense 

was going to be that his confession was false. He stated: “Who would confess 

to a crime they did not commit? Well, the evidence in this case is going to 

show ladies and gentlemen, Steve Malloch did just that.” (Tr. Vol. II at 351.) 

He argued the statements Malloch made in the second recorded interview 

“were not voluntary, were not valid and were not true[.]” (Id. at 357.) 

Attorney Bohdan described them as the “products of a clever interviewing 

technique.” (Id.) Attorney Bohdan also used information he learned after 

consulting with experts on coerced confessions to frame his cross-examination 

of Detective Lauer. His questioning of Detective Lauer highlighted that even 

though Detective Lauer challenged Malloch’s account when Malloch stated he 

was asleep when he touched C.P., Detective Lauer did not challenge Malloch’s 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 29 of 37

account when Malloch said he intentionally touched C.P. Attorney Bohdan’s 

cross-examination of Detective Lauer also emphasized that while there is no 

legal distinction between a “good child molester” and a “bad child molester,” 

Detective Lauer’s interrogation of Malloch implied that there was one. (Id. at 

496.) Malloch himself testified that it was very upsetting to him when 

Detective Lauer accused him of being “a one percenter.” (Tr. Vol. III at 564.) 

Malloch believed that if he did not say that he “made a mistake” and 

consciously touched C.P., he would be classified as a “one percenter who goes 

around and prays [sic] on little children.” (Id. at 565.) Malloch believed he 

would benefit from not being labeled a “one percenter[.]” (Id.) Finally, in his 

closing argument, Attorney Bohdan argued Detective Lauer used manipulative 

interrogation tactics to illicit a false confession from Malloch.

[26] “[W]e do not second-guess strategic decisions requiring reasonable professional 

judgment even if the strategy or tactic, in hindsight, did not best serve the 

defendant’s interests.” State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), reh’g 

denied, cert. denied, 118 S. Ct. 1528 (1998). Attorney Bohdan placed before the 

jury the theory that Malloch’s confession was false and the result of police 

pressure. He made the strategic decision to advance this theory through his 

cross-examination of Detective Lauer and through Malloch’s own testimony

rather than through proffering an expert witness. This was a reasonable tactical 

decision, and we hold that Attorney Bohdan did not perform deficiently in 

choosing not to call an expert witness on the subject of false confessions. See, 

e.g., Troutman v. State, 730 N.E.2d 149, 154-55 (Ind. 2000) (holding trial 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 30 of 37

counsel’s decision not to call a rebuttal expert witness after cross-examining the 

State’s expert witness was a reasonable strategic decision).

2. Sleep Expert

[27] Second, Malloch asserts Attorney Bohdan provided ineffective assistance in 

failing to call an expert witness to testify about sexsomnia. He argues that a 

“minimally competent defense attorney would have secured the testimony of a 

qualified expert.” (Appellant’s Br. at 58.) In Liao v. Junious, the United States 

Ninth Circuit Court of Appeals held that the petitioner was entitled to federal 

habeas corpus relief when the petitioner’s trial counsel failed to arrange for the 

petitioner to undergo a sleep study when the petitioner’s principal defense was 

that he was sleepwalking at the time of the alleged criminal act. 817 F.3d 678, 

695 (9th Cir. 2016). Malloch contends he likewise is entitled to post-conviction 

relief.

[28] An attorney may perform deficiently by failing to present necessary expert 

witness testimony. See, e.g., Carew v. State, 817 N.E.2d 281, 288 (Ind. Ct. App. 

2004) (holding appellate counsel performed deficiently by failing to challenge 

on appeal the trial court’s exclusion of expert testimony), trans. denied. “Expert 

testimony is appropriate when it addresses issues not within the common 

knowledge and experience of ordinary persons and would aid the jury.” Miller, 

770 N.E.2d at 773. “When [jurors] are faced with evidence that falls outside 

common experience, we allow specialists to supplement the jurors’ insight.” 

Carter v. State, 754 N.E.2d 877, 882 (Ind. 2001), reh’g denied. Yet, the decision 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 31 of 37

whether to call an expert witness is still generally a strategic decision that we 

will not second guess. Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009), 

trans. denied. We “will not declare counsel ineffective for failure to call a 

particular witness absent a clear showing of prejudice.” Ben-Yisrayl v. State, 729 

N.E.2d 102, 108 (Ind. 2000), cert. denied, 122 S. Ct. 73 (2001).

[29] Attorney Bohdan consulted with two sleep specialists – Dr. Bornemann and Dr. 

Kaplish – before Malloch’s second trial. Attorney Bohdan explained during the 

evidentiary hearing on Malloch’s petition for post-conviction relief that he 

decided not to call Dr. Bornemann as a witness because Dr. Bornemann 

indicated he could not be of assistance to Malloch in light of Malloch’s 

confession during the second recorded interrogation. Attorney Bohdan

explained those statements were “deemed problematic for [Dr. Bornemann] to, 

to support [Malloch] with an opinion.” (Tr. Vol. II at 157.) Because Attorney 

Bohdan consulted with Dr. Bornemann and Dr. Bornemann indicated he could 

not provide a supportive opinion, we cannot say Attorney Bohdan performed 

deficiently by not calling Dr. Bornemann to testify at Malloch’s trial. See, e.g., 

Reeves v. State, 174 N.E.3d 1134, 1142 (Ind. Ct. App. 2021) (holding trial 

counsel made reasonable strategic decision not to call an unfavorable witness), 

trans. denied. 

[30] Unlike with Dr. Bornemann, Attorney Bohdan attempted to secure Dr. 

Kaplish’s testimony for Malloch’s second trial, but he failed to properly 

subpoena him. Malloch, 980 N.E.2d at 897. When denying Attorney Bohdan’s 

motion to continue Malloch’s trial, the trial court even noted that it was 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 32 of 37

“troubled” by Attorney Bohdan’s failure to properly subpoena Dr. Kaplish. 

(D.A. Tr. Vol. I at 210.) Given that attempting to secure Dr. Kaplish’s 

testimony was the only strategic change between Malloch’s first trial and his 

second trial and that Attorney Bohdan recognized the need to secure Dr. 

Kaplish’s testimony soon after the end of the first trial, Attorney Bohdan should 

have immediately begun the process of attempting to either secure Dr. Kaplish’s 

testimony by subpoena or arranging an evidentiary deposition of Dr. Kaplish. 

Ultimately, neither of those two things happened. 

[31] However, we cannot say Attorney Bohdan’s unsuccessful effort to secure Dr. 

Kaplish’s testimony amounted to constitutionally deficient performance. 

During the hearing on the motion to continue Malloch’s second trial, Attorney 

Bohdan acknowledged he had not started the process of attempting to properly 

subpoena Dr. Kaplish as an out-of-state witness,

4 but he had been in frequent 

contact with Dr. Kaplish regarding Dr. Kaplish’s availability. At the postconviction relief hearing, Attorney Bohdan described Dr. Kaplish as a “not 

terribly cooperative” witness. (Tr. Vol. II at 156.) “Competence does not 

require an attorney to browbeat a reluctant witness into testifying[.]” Knowles v. 

Mirzayance, 556 U.S. 111, 125, 129 S. Ct. 1411, 1421 (2009) (holding petitioner 

failed to establish his trial counsel performed deficiently in advising him to 

withdraw his insanity plea after petitioner’s parents refused to testify). 

4 See, e.g., Ind. Code § 35-37-5-5 (2004) (statute concerning summoning of witnesses from another state to 

testify in this state).
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 33 of 37

[32] Further, putting a reluctant witness on the stand runs the risk that the witness 

will give unfavorable testimony. See, e.g., Guertin v. State, 533 S.E.2d 159, 161 

(Ga. Ct. App. 2000) (holding post-conviction relief petitioner’s trial counsel was 

not ineffective for choosing not to call a witness to testify because “as a 

reluctant witness, any beneficial testimony that [she] could have provided might 

have been offset with testimony that could hurt [defendant’s] case”). Dr. 

Kaplish would have been able to offer general information to the jury about 

sexsomnia, and as a credentialed expert, his testimony that the scientific 

community recognized sexsomnia likely would have carried more weight than

Malloch’s testimony about the condition. However, Dr. Kaplish also likely 

would have testified that a child molester attempting to avoid conviction might 

falsely assert he suffered from sexsomnia, and in diagnosing Malloch with 

sexsomnia, Dr. Kaplish assumed Malloch and his wife were telling the truth.

In his deposition, Dr. Kaplish testified:

[State:] But you can make a diagnosis strictly about what your 

patient and their families tell you?

[Dr. Kaplish:] Yes.

[State:] If those—if that patient or their families are lying to you, 

would you agree that your diagnosis could be incorrect?

[Dr. Kaplish:] Could be. 

(D.A. State’s Ex. 1 at 20-21.) Dr. Kaplish further testified:
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 34 of 37

[State:] Did you determine that [Malloch] suffered from 

sexsomnia?

[Dr. Kaplish:] Yes.

[State:] Okay. What did you rely upon to make that 

determination?

[Dr. Kaplish:] I relied on the behavior as something that is 

necessarily sexual activity occurring out of sleep.

[State:] Which behavior?

[Dr. Kaplish:] The sexual behavior.

[State:] There’s a lot. Describe which behavior.

[Dr. Kaplish:] I’d say the complex behavior in which he was 

fondling his stepdaughter.

[State:] Okay. Well, you know some people molest children 

intentionally and they’re not asleep. So, what told you that he 

was asleep then?

[Dr. Kaplish:] His - - I don’t know.

* * * * *

[State:] But you can understand how somebody charged with 

molesting a child at night, in bed together, might claim to be 

suffering from sexsomnia. Correct?
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 35 of 37

[Dr. Kaplish:] Yes.

[State:] And it might be false?

[Dr. Kaplish:] May be.

[State:] Okay. So, why is it you think we should believe him 

when he says he was asleep?

[Dr. Kaplish:] I don’t know if I’m qualified to answer that 

question.

(Id. at 28-29.) 

[33] When the State confronted Dr. Kaplish with details from Malloch’s confession, 

Dr. Kaplish did not steadfastly hold to his sexsomnia diagnosis. The State 

asked:

[State:] If you read a statement by your patient where he 

admitted that he woke up, looked at his 11-year-old stepdaughter, 

and thought he could stick his hands down there and she 

wouldn’t notice it because she was asleep. Would that change 

your diagnosis?

[Dr. Kaplish:] I don’t know.

[State:] If your patient had admitted that he was sexually 

attracted to his stepdaughter for the two years before that, from 

the time she was 8 or 9 until she was 11, would that change your 

diagnosis?

[Dr. Kaplish:] I don’t know.
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 36 of 37

* * * * * 

[State:] If the patient admitted that he pretended to be asleep after 

she pulled his hand out of her vagina, would that change your 

diagnosis?

[Dr. Kaplish:] I don’t know.

(Id. at 35-36.) Just as Dr. Bornemann testified at the post-conviction relief 

hearing that it would concern him if someone claiming to have sexsomnia 

admitted to intentionally sexually touching an underage girl, Dr. Kaplish likely 

would have testified that Malloch’s confession to waking up and intentionally 

inserting his finger into C.P.’s vagina cut against a sexsomnia diagnosis. Thus, 

given Dr. Kaplish’s reluctance to testify and the limited value of his testimony, 

we hold Attorney Bohdan did not perform deficiently in not calling Dr. Kaplish 

to testify at Malloch’s trial. See, e.g., White v. State, 25 N.E.3d 107, 134-35 (Ind. 

Ct. App. 2014) (holding trial counsel did not perform deficiently in choosing 

not to call witnesses who likely would have provided unfavorable testimony), 

reh’g denied, trans. denied, cert. denied, 136 S. Ct. 595 (2015). 

Conclusion

[34] Attorney Bohdan did not perform deficiently by not calling an expert witness 

about false confessions at Malloch’s trial because Attorney Bohdan pursued 

other strategies calculated to sow doubt regarding the veracity of Malloch’s 

confession. Nor did Attorney Bohdan perform deficiently when he did not call 
Court of Appeals of Indiana | Opinion 22A-PC-2053 | November 16, 2023 Page 37 of 37

a sleep expert who could not provide an opinion supportive of Malloch or a

sleep expert who would have been a reluctant and equivocal witness at best. 

We accordingly affirm the post-conviction court’s denial of Malloch’s petition 

for post-conviction relief.

[35] Affirmed. 

Altice, C.J., and Bradford, J., concur.