Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 1 of 33

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.

ATTORNEY FOR APPELLANT

Cynthia M. Carter

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Samuel Hampton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 15, 2015

Court of Appeals Case No.

49A04-1410-PC-484

Appeal from the Marion Superior 

Court

The Honorable Marc Rothenberg, 

Judge

Trial Court Cause No.

49G02-0802-PC-44326

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 2 of 33

STATEMENT OF THE CASE

[1] Appellant-Defendant, Samuel Hampton (Hampton), appeals the postconviction court’s denial of his petition for post-conviction relief.

[2] We affirm.

ISSUES

[3] Hampton raises four issues on appeal, which we consolidate and restate as the 

following two issues:

(1) Whether the post-conviction court erred in denying Hampton’s petition for 

post-conviction relief because Hampton was denied effective assistance of 

counsel; and

(2) Whether the post-conviction court abused its discretion by declining to 

compel specific discovery and by further imposing a protective order to prohibit 

Hampton from pursuing certain evidence.

FACTS AND PROCEDURAL HISTORY

[4] The facts most favorable to Hampton’s conviction were set forth in this court’s 

opinion in Hampton’s direct appeal as follows:

Around Christmas in 2007, six-year-old J.B. was visiting at the 

home of J.B.’s great aunt, Renita Glasco [(Glasco)], and 

Hampton, who was Glasco’s boyfriend. At some point during 

that visit, while Glasco was sleeping on the couch in the home’s 

living room, J.B. went from the living room into a bedroom 

where Hampton, who was forty-seven years old, was laying on 

the bed wearing a t-shirt and boxer shorts. After J.B. joined 

Hampton on the bed, Hampton pulled down J.B.’s underwear. 
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Hampton then “put his penis inside [J.B.’s] butt.” Hampton’s 

penis felt “hard and greasy,” and Hampton “was shaking it.” 

When Hampton’s penis touched J.B., it made J.B. feel “[n]asty.” 

Also around Christmas, J.B. told [Mother] that “her behind kind 

of hurt . . . her.”

On January 12, 2008, J.B. “came out [of] the blue” and told 

Mother that “she had secrets to tell [her].” J.B. told Mother that 

Hampton had touched her. Mother then called the police.

On January 14, 2008, Indianapolis Police Detective Genae 

Gehring[-Cook] [(Detective Gehring-Cook)], a child abuse 

detective, met with Mother and J.B. Detective Gehring[-Cook] 

interviewed Mother, and also sat in while Diane Bower[s] 

[(Bowers)], who was a child interviewer for the child advocacy 

center, interviewed J.B. On February 1, 2008, Detective 

Gehring[-Cook] also conducted interviews with Hampton, 

Glasco, and Mother’s sister[--Ayesha Rivers (Rivers)].[1]

Hampton v. State, 921 N.E.2d 27, 28 (Ind. Ct. App. 2010) (internal citations 

omitted), reh’g denied, trans. denied.

[1] On February 22, 2008, the State filed an Information, charging Hampton with 

Count I, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a)(1) (2007); 

and Count II, child molesting, a Class C felony, I.C. § 35-42-4-3(b) (2007). The 

Information alleged that between July 1, 2007, and January 12, 2008, Hampton 

performed or submitted to deviate sexual conduct with, as well as fondling or 

 

1 During her interview, Rivers indicated that her own daughter, D.B.—i.e., J.B.’s cousin—had also reported 

having been touched inappropriately by Hampton. Following an interview with D.B., Detective GehringCook elected not to pursue criminal charges, concluding that D.B.’s statements were based on conversations 

she had overheard rather than her actual experience.
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touching of, J.B. On March 12, 2008, a Public Defender was appointed to 

represent Hampton, and he proceeded to conduct depositions and prepare a 

defense. On September 19, 2008, at a hearing where Hampton was represented 

by his Public Defender, Hampton, after being informed of his “absolute 

constitutional right to[] a trial by jury[,]” declared that he wished to have the 

matter decided by a bench trial. (Waiver Hrg. Tr. p. 6). The trial court found 

that Hampton “knowingly and intelligently and voluntarily waived his right to 

a jury trial.” (Waiver Hrg. Tr. pp. 7-8).

[2] On November 12, 2008, Hampton replaced his Public Defender with Private 

Counsel. The day prior to the start of trial, on May 7, 2009, Hampton’s Private 

Counsel moved to withdraw, stating that Hampton had fired him and intended

to retain new counsel. A motion for a thirty-day continuance accompanied the 

withdrawal motion. That same day, the trial court denied Private Counsel’s

request to withdraw because the new attorney had not yet entered an 

appearance on Hampton’s behalf, and—as the case had already been continued 

numerous times—the trial court refused to delay the trial any further.

[3] On May 8, 2009, the trial court conducted a bench trial. The State’s case 

centered on the testimony of J.B., who stated unequivocally that Hampton “put 

his penis inside [her] butt.” (Trial Tr. p. 14). When the State rested its case-inchief, Hampton moved for judgment on the evidence, which the trial court

granted as to Count II only. During his case-in-chief, Hampton presented a 

defense of actual innocence, arguing that J.B. had fabricated the molestation 

allegations after being coached by her mother, Sharon Bryant (Mother), as 
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revenge for Hampton’s role in causing Mother to be evicted from an apartment. 

At the close of the evidence, the trial court found Hampton guilty of Count I, 

child molesting as a Class A felony. In rendering its verdict, the trial court 

stated that it found “the victim in this case is [a] very credible, very articulate, 

mature young lady who gave explicit details of what [Hampton] did to her.” 

(Trial Tr. p. 111). On May 20, 2009, the trial court sentenced Hampton to the 

minimum term of twenty years for a Class A felony.

[4] Hampton subsequently declared his intent to appeal his conviction, so the trial 

court appointed Appellate Counsel to act on Hampton’s behalf. On direct

appeal, Appellate Counsel argued that the State had presented insufficient 

evidence to support Hampton’s conviction, specifically contending that J.B.’s 

testimony was incredibly dubious. The State cross-appealed, asserting that the 

trial court had imposed an illegal sentence. On February 8, 2010, our court 

affirmed Hampton’s conviction and his twenty-year sentence. See Hampton, 921 

N.E.2d at 27. Based on the facts before our court, we concluded “that the 

testimony of seven-year-old J.B. was not so incredibly dubious or inherently 

improbable that no reasonable person could believe it.” Id. at 29.

[5] On January 30, 2012, Hampton filed a pro se petition for post-conviction relief, 

and on August 8, 2012, Hampton’s post-conviction attorney filed her 

appearance. While investigating grounds for post-conviction relief, Hampton’s 

attorney discovered that Hampton’s file did not include a copy of Detective 

Gehring-Cook’s February 1, 2008 interview with Rivers. Thus, on May 23, 

2013, Hampton filed a non-party request for Rivers’ taped statement and also 
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served a subpoena duces tecum on Detective Gehring-Cook for a copy of the 

same. On May 31, 2013, Hampton received Rivers’ statement, and after 

reviewing it, Hampton’s attorney also discovered that Rivers’ minor son, R.W. 

(i.e., J.B.’s cousin), had been scheduled for an interview with Bowers at the 

Child Advocacy Center. Accordingly, on June 4, 2013, Hampton filed a nonparty request for the taped statement of R.W, and on June 21, 2013, Hampton 

served a subpoena duces tecum on Bowers for a copy of the same.

[6] On July 19, 2013, the State filed a notice of discovery compliance, stating that 

it, along with the Child Advocacy Center and the Indianapolis Metropolitan 

Police Department, had “made all reasonable efforts to locate the requested 

statement[] [of R.W.,] and no such statement has been found[.] Moreover the 

State has not found any positive evidence that any such statement was ever 

taken.” (Appellant’s App. p. 73). On July 25, 2013, Hampton filed a motion to 

schedule an attorneys-only status conference, positing that, “[c]ontrary to the 

State’s assertion, there is evidence R.[W].’s statement does exist. It is a 

material piece of evidence. If it is missing, then the State should explain what 

happened to it.” (Appellant’s App. p. 75). The post-conviction court denied 

Hampton’s motion for a status conference on July 30, 2013.

[7] On August 5, 2013, Hampton, by counsel, filed a motion to amend his petition 

for post-conviction relief, which the post-conviction court granted on August 8, 

2013. In his amended petition, Hampton alleged that the performance of both 

his trial and appellate counsel “fell below the reasonable standard of 

professional care for an attorney” and that “their mistakes prejudiced the 
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outcome of the proceedings because there is a ‘reasonable probability’ of a 

different outcome had his counselors performed adequately.” (Appellant’s 

App. p. 80).

[8] On August 14, 2013, Hampton filed another verified motion to schedule an 

attorneys-only status conference based on his contention that the State was 

withholding R.W.’s taped statement. The same day, Hampton also filed a 

motion for specific discovery to obtain a copy of R.W.’s statement. On August 

22, 2013, the post-conviction court granted Hampton’s request for an attorneysonly status conference and scheduled the matter for October 18, 2013; however, 

the post-conviction court held Hampton’s motion for specific discovery under 

advisement pending the State’s response. On September 16, 2013, the State 

filed a motion for a protective order, arguing that, despite its formal responses 

that it had unsuccessfully made all reasonable efforts to find R.W.’s statement, 

Hampton’s counsel “has continued to call, annoy and harass the case detective 

and the detective’s supervisors, including insinuating to the detective’s 

supervisors[] that the case detective has not competently perform[ed] her job.” 

(Appellant’s App. p. 100). Accordingly, the State requested an order 

“[p]rotecting it from [Hampton’s] further Motions for Discovery or any further 

discovery efforts in this matter, without further order from the [c]ourt.” 

(Appellant’s App. p. 100). The post-conviction court granted the State’s motion 

for a protective order until the issue could be discussed at the status conference.

[9] At the status conference on October 18, 2013, the State explained to the postconviction court that “everyone . . . who potentially could have [R.W.’s 
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statement] has made reasonable efforts to find it, all possible reasonable efforts 

to find it[,]” but the evidence indicates that the statement does not exist. (PCR

Tr. p. 5). Accordingly, the post-conviction court determined that

as an officer of the court, I believe that [Hampton’s counsel has 

made a diligent effort to obtain the statement]. I also as an 

officer of the court believe [the prosecuting attorney] when he 

says that statement does not exist. Therefore, I’m going to 

assume that statement does not exist. I’m also going to instruct 

you then to stop pursuing the statement as you’ve been told it 

does not exist unless you have some definitive proof that it exists 

and [the State is] lying to you, in which case that opens up a 

whole nother [sic] can of worms as far as sanctions and such. I’m 

going to instruct you to stop pursuing it.

(PCR Tr. p. 7). On November 14, 2013, Hampton filed a Motion to Lift 

Protective Order and a Motion to Protect Evidence Against Loss, Alteration, 

and Destruction. On November 19, 2013, the post-conviction court denied 

Hampton’s motion to lift the protective order, stating,

[Counsel] mischaracterizes court[’]s ruling in her motion. Court 

did not order [Counsel] to not seek [d]iscovery in this matter. 

Court granted State’s motion for protective order after hearing 

evidence that the evidence [Counsel] seeks does not exist. The 

court ordered that Counsel not contact witness as the State has 

indicated said evidence did not exist. If there is evidence that the 

State has purposefully [misled] the court, it should be presented, 

otherwise court’s previously granted order stands.

(Appellant’s App. p. 136).
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[10] On April 4, 2014, the post-conviction court conducted a hearing on Hampton’s 

petition for post-conviction relief. On September 22, 2014, the post-conviction 

court denied Hampton’s petition, supporting its decision with specific findings 

of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 

1(6). Specifically, the post-conviction court concluded that Hampton failed to 

establish that Public Defender, Private Counsel, and Appellate Counsel 

provided ineffective assistance of counsel.

[11] Hampton now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[12] Post-conviction proceedings afford petitioners a limited opportunity to raise 

issues that were unavailable or unknown at trial and on direct appeal. Pruitt v. 

State, 903 N.E.2d 899, 905 (Ind. 2009), reh’g denied. In a post-conviction 

proceeding, the petitioner bears the burden of establishing the grounds for relief 

by a preponderance of the evidence. Passwater v. State, 989 N.E.2d 766, 770 

(Ind. 2013) (citing Ind. Post-Conviction Rule 1(5)). Because Hampton appeals 

from denial of his petition for post-conviction relief, he “stands in the position 

of one appealing from a negative judgment.” Id. Therefore, in order to prevail, 

Hampton “must show that the evidence as a whole leads unerringly and 

unmistakably to a conclusion opposite that reached by the post-conviction 

court.” Id. On review, we accord no deference to the post-conviction court’s 

legal conclusions, and we will reverse the post-conviction court’s findings and 

judgment “only upon a showing of clear error—that which leaves us with a 
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definite and firm conviction that a mistake has been made.” Id. (quoting BenYisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g denied; cert. denied, 534 

U.S. 830 (2001)).

II. Ineffective Assistance of Counsel

[13] Hampton claims that his conviction must be vacated because he received 

ineffective assistance of both trial and appellate counsel. A claim of ineffective 

assistance of counsel is premised on the Sixth Amendment to the United States 

Constitution, which provides that “[i]n all criminal prosecutions, the accused 

shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” At 

the outset, we note that “‘counsel’s performance is presumed effective, and a 

defendant must offer strong and convincing evidence to overcome this 

presumption.’” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013) 

(quoting Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002)), reh’g denied, trans. 

denied. To satisfy this burden, the United States Supreme Court has articulated 

a two-prong test for establishing ineffective assistance of counsel. See Strickland 

v. Washington, 466 U.S. 668 (1984), reh’g denied. The two prongs of the 

Strickland test “present independent inquiries, either of which may be sufficient 

for disposing of a claim.” State v. McManus, 868 N.E.2d 778, 790 (Ind. 2007), 

reh’g denied; cert. denied, 552 U.S. 1298 (2008).

[14] First, under Strickland, “a defendant must show that counsel’s performance was 

deficient.” Passwater, 989 N.E.2d at 770 (citing Strickland, 466 U.S. at 687). 

This prong requires the defendant to demonstrate “that counsel’s representation 

fell below an objective standard of reasonableness and that counsel made errors 
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so serious that counsel was not functioning as ‘counsel’ guaranteed to the 

defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687). 

“Second, a defendant must show that the deficient performance prejudiced the 

defense.” Id. (citing Strickland, 466 U.S. at 687). For counsel’s performance to 

be prejudicial, the errors must have been “so serious as to deprive the defendant 

of a fair trial, meaning a trial whose result is reliable.” Id. (citing Strickland, 466 

U.S. at 687). A defendant establishes prejudice by showing “that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at

694). “A reasonable probability is one that is sufficient to undermine 

confidence in the outcome.” Id. (citing Strickland, 466 U.S. at 694).

A. Ineffective Assistance of Trial Counsel: Public Defender

[15] Hampton first claims that the post-conviction court erroneously denied his 

petition for post-conviction relief because Public Defender’s “performance 

violated the Sixth Amendment right to effective counsel and the Fourteenth 

Amendment right to a fair trial.” (Appellant’s Br. p. 14). More specifically, 

Hampton argues that Public Defender “failed to develop a theory of the case; 

investigate the case; talk to key witnesses; preserve [Hampton’s] right to trial by 

jury of his peers; consult experts; and provide proper representation at the child 
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hearsay hearing.” (Appellant’s Br. p. 14). We will address each purported 

error in turn.2

1. Failure to Develop a Theory of the Case

[16] Hampton first asserts that Public Defender “failed to develop a ‘theory of the 

case.’” (Appellant’s Br. p. 14). The post-conviction court concluded that 

Hampton’s trial counsel acted reasonably by basing the defense on a theory of 

actual innocence, and our review of the record reveals that Hampton has 

steadfastly maintained his innocence throughout this case. On appeal,

Hampton insists that a “bald assertion of innocence” was insufficient “to tell 

the story to the fact-finder and convince the fact-finder”; rather, Public 

Defender should have “put forth the facts which formed the foundation of the 

defense.” (Appellant’s Br. p. 15). We note that Public Defender represented 

Hampton prior to the bench trial—from March 12, 2008, until November 12, 

2008. Thus, while he conducted depositions and began preparing the case for 

trial, Public Defender did not present the case to the fact-finder because he was 

represented by private counsel and, therefore, could not have been ineffective in 

such a respect.

 

2

 Hampton has not developed a cogent argument regarding his contention that Public Defender was

ineffective by failing to consult experts; therefore, we find that he has waived this issue for appellate review. 

See Ind. Appellate Rule 46(A)(8)(a).
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2. Failure to Investigate and Talk to Key Witnesses/Failure to Provide Adequate 

Representation at Child Hearsay Hearing

[17] Hampton next alleges that Public Defender was deficient by failing to 

investigate the case and talk to key witnesses. To establish a “failure to 

investigate as a ground for ineffective assistance of counsel requires going 

beyond the trial record to show what investigation, if undertaken, would have 

produced.” McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013) (citing 

Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), reh’g denied; cert. denied, 528 

U.S. 861 (1999)). “This is necessary because success on the prejudice prong of 

an ineffectiveness claim requires a showing of a reasonable probability of 

affecting the result.” Id. (quoting Woods, 701 N.E.2d at 1214).

[18] Here, the post-conviction court found that Public Defender’s “investigation of 

the case was sufficient” as he conducted depositions of several State witnesses, 

and Hampton failed to demonstrate how further investigation would have 

resulted in his acquittal. (Appellant’s App. p. 198). In turn, Hampton argues 

that Bowers, the forensic interviewer who conducted J.B.’s interview at the 

Child Advocacy Center, “was an essential witness for the child hearsay 

hearing[,]” but Public Defender “spontaneously decided to stipulate to the 

admission of the videotape of the January 18, 2008 interview.” (Appellant’s Br. 

p. 15). Hampton posits that “[t]here was no strategic reason” behind Public 

Defender’s failure to interview or depose Bowers or subject her to crossexamination at the child hearsay hearing. (Appellant’s Br. p. 15).
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[19] Hampton’s appellate brief is devoid of any cogent argument regarding what 

Public Defender would have discovered by interviewing Bowers or how it 

would have affected the outcome of his case. Instead, he cursorily suggests that 

because “the child witness may have been ‘coached’ it [was] imperative to show 

how such coaching (either deliberate or inadvertent) could happen.” 

(Appellant’s Br. p. 17). While Public Defender stipulated to the admission of 

J.B.’s interview for purposes of the child hearsay hearing only, J.B.’s recorded 

statements were not admitted during the bench trial, and Bowers did not testify. 

Rather, the State presented evidence of J.B.’s allegations against Hampton 

through J.B.’s direct testimony, which the trial court explicitly found to be 

credible. Moreover, although Hampton called Bowers to testify at the postconviction hearing, he did not question her regarding the content of J.B.’s

videotaped interview or her impressions thereof—i.e., whether there was

“[e]vidence of coaching.” (Appellant’s Reply Br. p. 3). Accordingly, we cannot 

say that Public Defender’s decision to stipulate to the videotaped interview at 

the child hearsay hearing without interviewing, deposing, or cross-examining

Bowers was deficient, let alone prejudicial to the outcome of Hampton’s case.

3. Waiver of Right to Jury Trial

[20] Hampton concedes that he knowingly, intelligently, and voluntarily waived his 

right to a jury trial as the post-conviction court determined, but “he does not 

know why his [P]ublic [D]efender would have recommended this tack.” 

(Appellant’s Br. p. 16). According to Hampton, Public Defender “was remiss 

in recommending waiving such an important and fundamental right given the 
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circumstances and what was at stake.” (Appellant’s Br. pp. 16-17). However, 

Hampton does not expand his argument to explain how his informed decision

to proceed with a bench trial rather than a jury trial constituted ineffective 

assistance.

[21] Our supreme court has previously found that waiving a jury trial is part of an 

attorney’s strategic decision-making discretion. See Coleman v. State, 694 N.E.2d 

269, 276 (Ind. 1998). “On appeal, we do not second guess counsel’s strategic 

decisions requiring reasonable professional judgment even if the strategy or 

tactic, in hindsight, did not best serve the defendant’s interests.” Elisea v. State, 

777 N.E.2d 46, 50 (Ind. Ct. App. 2002). Public Defender did not testify during 

the post-conviction hearing; instead, he submitted an affidavit to the postconviction court stating that he did “not have any independent recollection of 

strategic decisions made in this case or the evidence in this case and would 

defer to what is recorded in the file.” (Appellant’s App. p. 223). Nevertheless, 

“courts should not insist that attorneys ‘confirm every aspect of the strategic 

basis for his or her actions.’” Hinesley, 999 N.E.2d at 985 (quoting Harrington v. 

Richter, 562 U.S. 86, 109 (2011)). Hampton bears the burden of showing that 

Public Defender’s performance was deficient, and because he presented no 

evidence pertaining to the advice he received from Public Defender as to why a 

bench trial would be more suitable for the facts of this case than a jury trial, we 

will not disturb the post-conviction court’s finding that Public Defender was not 

ineffective by making a “strategic decision to waive the jury trial.” (Appellant’s 

App. p. 200).
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B. Ineffective Assistance of Trial Counsel: Private Counsel

[22] Second, Hampton claims that the post-conviction court clearly erred in denying 

his post-conviction relief petition because of the ineffective representation 

provided by Private Counsel. Similar to the allegations of ineffectiveness raised 

with respect to Public Defender, Hampton contends that Private Counsel 

“failed to investigate the case and talk to key witnesses, preserve [Hampton’s] 

right to trial by jury of his peers, consult experts, and provide proper 

representation at the bench trial and sentencing hearing.” (Appellant’s Br. p. 

18). We will again address each purported error in turn.

1. Failure to Investigate the Case and Talk to Key Witnesses

[23] Without providing any context or a cogent argument, Hampton vaguely asserts 

that Private Counsel “failed to investigate the case and talk to key witnesses” by 

not speaking with Bowers; by not taking any additional statements subsequent 

to Public Defender’s depositions; by not remembering Rivers’ role in the case or 

“the substance of what she would have testified to”; and by presenting only two 

witnesses during Hampton’s case-in-chief. (Appellant’s Br. p. 18). The postconviction court determined that Hampton’s

claim that [Private Counsel] also failed to investigate the case to 

the level of ineffectiveness also is found to be without merit. 

While the depositions were completed by the time [Private 

Counsel] took the case over, he stated that he familiarized 

himself with the file from [Public Defender], and prepared a 

witness list, and based on speaking to his client, the witnesses, 

and reviewing the file, was able to develop a theory of the case.
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(Appellant’s App. p. 198).

[24] “The Strickland ineffective assistance of counsel standard ‘require[s] no special 

amplification in order to define counsel’s duty to investigate.’” Wilkes v. State, 

984 N.E.2d 1236, 1241 (Ind. 2013) (quoting Strickland, 466 U.S. at 690). “In 

any effectiveness case, a particular decision not to investigate must be directly 

assessed for reasonableness in all the circumstances, applying a heavy measure 

of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Based on 

Hampton’s perfunctory argument, we discern no basis for reversing the postconviction court’s finding that Private Counsel rendered effective assistance of 

counsel with respect to the investigation of the case.

2. Waiver of Right to Jury Trial

[25] Hampton next contends that Private Counsel provided ineffective assistance of 

counsel because he “discarded the idea of recommending a withdrawal of the 

jury trial waiver because he felt it would be ‘insurmountable.’” (Appellant’s Br. 

p. 19). However, Hampton does not develop his argument any further to 

articulate how Private Counsel was deficient or how the decision to proceed 

with a bench trial prejudiced Hampton. As a result, we find that he has waived 

this issue for appellate review. See App. R. 46(A)(8)(a).

3. Consultation of Experts and Other Materials

[26] Hampton also asserts that Private Counsel was ineffective because he failed to 

consult any experts in this case, attend Continuing Legal Education (CLE) 

courses, or read any books about child hearsay issues. According to Hampton, 
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“[y]ounger children (those aged six and younger) are especially prone to 

suggested memories, especially with ‘suggestive interviews.’” (Appellant’s Br. 

p. 27). During the bench trial, Private Counsel argued that Mother coached 

J.B.’s allegations, as evidenced by the fact that J.B.

clearly used words that were not age suitable and she obviously 

learned those from somebody else and I’m guessing whoever 

taught her those words, all of a sudden what she referred to as a 

dick [during the child interview] is now a penis [at trial], and 

somebody [has] been talking to her, the child said she’d been 

talked to—she went over her testimony before the trial and we 

heard evidence that she went over and talked about what she was 

going to say before the hearing on the child [h]earsay [s]tatute 

and before her deposition[.] [Mother] indicated in her deposition 

that she talked all morning, all afternoon or all day, something 

like that, the day before, and then the morning of, one of these 

statements, so clearly the child’s been talked to.

(Trial Tr. p. 106). Hampton now argues that “[P]rivate [C]ounsel did not come 

up with a plausible reason how the words ‘were suggested’” and should have 

consulted an expert, reviewed treatises, or attended CLE courses in order “to 

support his haphazard conclusions.” (Appellant’s Br. p. 27).

[27] At the post-conviction hearing, Private Counsel testified that he reviewed 

statutes and case law pertaining to child hearsay issues in preparation for the 

trial. On appeal, Hampton does not articulate how any particular expert, 

treatise, or CLE course would have convinced the trial court that J.B.’s 

testimony was unreliable. During the post-conviction hearing, Hampton 

presented no evidence from any expert to specifically demonstrate that J.B. had, 
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in fact, been coached. Hampton also contends that Private Counsel should 

have called Bowers to testify at the bench trial “because the [forensic child]

interview itself contained the evidence necessary for supporting the claim of 

implanted memories”; yet, he asked no questions of Bowers at the postconviction hearing to support this claim. (Appellant’s Br. p. 27). As such, “[i]t 

is at best wholly speculative” that the testimony of Bowers or any other expert 

“would have affected the outcome of the trial.” Harrison v. State, 707 N.E.2d 

767, 779 (Ind. 1999), reh’g denied; cert. denied, 529 U.S. 1088 (2000).

[28] Moreover, at the bench trial, Detective Gehring-Cook testified that, during her 

five years as a child abuse detective, she had worked on at least 125 child abuse 

cases and participated in numerous interviews, and she observed Bowers’ 

interview with J.B. Based on her experience, Detective Gehring-Cook testified 

that “it’s very common” for children to change the terminology they use for 

different body parts, and often “the child is unable to give an exact date [of the 

incident] . . . not because of them being smart or dumb or anything like that, it’s 

just an age [in]appropriate question and they’re not able to answer that type of a 

question.” (Trial Tr. pp. 50, 60). During cross-examination, Private Counsel 

delved into the defense’s theory that J.B.’s allegations had been coached by 

Mother, but Detective Gehring-Cook disagreed, stating:

It’s very difficult to coach [children] when they come up with 

details, a lot of parents when a child is coached they’re able to 

say like, well, yeah, he molested me or he raped me or 

something. But they can’t go into the details, the finer details of 

describing things[] that would be not normally known to a seven 
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 20 of 33

year old, such as . . . the victim said in this [case], the greasiness 

of [Hampton’s] penis.

(Trial Tr. p. 62). In a further attempt to demonstrate that Mother had 

inappropriately influenced J.B., Private Counsel asked if it was “kind of 

unusual for a child of [J.B.’s] age” to be using the word “dick.” (Trial Tr. p. 

64). Again, Detective Gehring-Cook responded that there was nothing 

suspicious about the language utilized by J.B. as she has

heard everything from dick, penis, cock, twigs and berries from 

kids from ages from three and up. They use all different words 

and who knows where they pick them up. You know, the guy—

the kid that did—with twigs and berries he picked it up from a 

movie, whatever—Austin Powers, you know, kids pick it up, 

they hear different words.

(Trial Tr. pp. 64-65). As the trial court could have relied on Detective GehringCook’s testimony even if presented with hypothetical contradictory evidence, 

we cannot say that there is a reasonable probability of a different outcome.

4. Failure to Provide Adequate Representation at Bench Trial

[29] Finally, Hampton contends that Private Counsel “failed to professionally 

represent Hampton” at the bench trial. (Appellant’s Br. p. 19). Private Counsel 

confirmed at the post-conviction hearing that Hampton “vehemently denied the 

allegations” so his defense strategy was based on a theory of innocence. (PCR 

Tr. p. 39). Also, Private Counsel recalled that “there may have been 

motivation” for Mother to coach J.B. into fabricating the allegations as a means 

of retaliating against Hampton. (PCR Tr. p. 39). Hampton now insists that 
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“[i]f [Private Counsel] truly believed Hampton was innocent, then he needed to 

show the trial court how the State’s witness’s allegations were implausible and 

why and how the defense’s theory of the case was sound.” (Appellant’s Br. p. 

20). Hampton further contends that “the [r]ecord makes clear [P]rivate 

[C]ounsel did not have his basic facts straight, was unprepared for trial, and 

failed to use the factual and legal tools which were readily available to him.” 

(Appellant’s Br. p. 20) (footnote omitted).3

[30] During the bench trial, Hampton testified that prior to J.B.’s allegations, Glasco 

had co-signed a lease on a one-bedroom apartment for Rivers and her children. 

At some point unbeknownst to Hampton and Glasco, Mother, along with her 

boyfriend and J.B., moved into Rivers’ apartment. In November or December 

of 2007, Hampton explained that they got a phone call in the middle of the 

night from Rivers, who was irate about all of the extra people living in her 

apartment. Hampton stated that he was concerned that Rivers would be 

evicted, so he told Mother that she (along with her boyfriend and J.B.) needed 

 

3

 Rather than relying on authoritative citations to demonstrate that Private Counsel’s performance was 

deficient, Hampton cites to Wikipedia and posits that “[t]he Kipling Method of investigation” makes it 

“painfully clear” that Private Counsel “was hopelessly asea [sic] when Hampton most needed counsel’s 

guidance and help.” (Appellant’s Br. p. 20 & n.4). We find no merit in this argument. Furthermore, to the 

extent that Hampton merely identifies evidence not relied upon at trial—i.e., D.B.’s child interview; discusses 

testimony that is contrary to Hampton’s—i.e., Mother’s statements that she did not have any ill-will about 

being evicted from an apartment; and notes instances of mistaken factual references—i.e., Private Counsel 

indicating that the molestation occurred in 2008 rather than 2007 and Detective Gehring-Cook’s substitution 

of Rivers for Glasco in discussing the layout of Glasco and Hampton’s home, we find that he has waived the 

issue for appellate review because he has not developed a cogent, well-cited argument that Private Counsel’s 

performance was inadequate and prejudiced the outcome of his case. See App. R. 46(A)(8)(a). For the same 

reason, we do not address Hampton’s footnoted claim that Private Counsel’s “deficient performance is 

evident” based on his attempt to withdraw on the eve of the bench trial and that his only conversation with 

Glasco was an attempt to convince Hampton to accept a plea agreement. (Appellant’s Br. p. 20).
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 22 of 33

to vacate the apartment or he would call the police. According to Hampton, his 

threat to call the police if Mother did not move out of Rivers’ apartment 

angered Mother and caused her to seek revenge. However, because Hampton’s 

testimony could have been “easily discard[ed] as ‘self-serving[,]’” Hampton

posits that “Glasco’s testimony was crucial” to demonstrate that Mother had a 

motive for fabricating allegations through J.B. (Appellant’s Br. p. 21). Yet, 

Glasco did not appear at the bench trial to testify, so Hampton contends that 

Private Counsel was ineffective for failing to subpoena her.

[31] It is well established that “a decision regarding what witnesses to call is a matter 

of trial strategy which an appellate court will not second-guess.” Curtis v. State, 

905 N.E.2d 410, 415 (Ind. Ct. App. 2009), trans. denied. As early as March 26, 

2008, Glasco was identified as a witness on the defense’s witness list. Glasco 

and Hampton had been in a relationship for nearly two decades; they lived 

together and maintained their relationship despite J.B.’s allegations. During the 

post-conviction hearing, Private Counsel testified that Glasco “indicated 

definitely a willingness to show up at trial[,]” so Private Counsel “was surprised 

when she didn’t show up.” (PCR Tr. pp. 35, 41). Although the nature of her 

relationship with Hampton indicates that Glasco would have appeared 

voluntarily at his trial, the burden is nevertheless on the defendant to “insur[e]

that witnesses who may aid in his or her defense are called.” Montgomery v. 

State, 804 N.E.2d 1217, 1221 (Ind. Ct. App. 2004), trans. denied. At the postconviction hearing, Private Counsel could not recall “what she would have 

testified to,” but as it is evident that Private Counsel intended to use Glasco’s 
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 23 of 33

testimony to aid in Hampton’s defense, his failure to secure her presence at trial 

constitutes deficient performance. (PCR Tr. p. 41). See Montgomery, 804 

N.E.2d at 1221 (finding trial counsel’s failure to subpoena two of the State’s 

expert witnesses, or request a continuance after the State did not call them, was 

deficient, and the defendant was prejudiced because “in what became 

essentially a ‘battle of experts,’ corroborating expert testimony would have been 

particularly powerful”).

[32] Nonetheless, the post-conviction court determined that “from her testimony at 

the evidentiary hearing[,] it is apparent that Ms. Glasco’s putative testimony at 

most would have been cumulative to testimony provided by [Hampton] 

himself. Therefore based on the available record, . . . Hampton has failed to 

establish that he was prejudiced by [Glasco’s] absence from the trial.” 

(Appellant’s App. p. 201). In particular, Glasco explained that she could have 

corroborated Hampton’s assertion that he wears brief-style underwear—not 

boxer shorts as J.B. alleged. Also, during the trial, the State presented a

statement from Hampton that he had purchased a bike for J.B. as a Christmas 

present in 2007 in order to discredit Hampton’s contention that he had a

significant falling out with J.B.’s Mother in November of 2007. Glasco stated 

that she could have testified that, although Hampton contributed some money 

for the bicycle, she actually went to the store and picked it out. Additionally, 

Hampton points to Glasco’s deposition, in which she corroborates Hampton’s 

claim that J.B. was not at their home around Christmas-time when the 

molestation allegedly occurred.
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 24 of 33

[33] We agree with the post-conviction court that Hampton has not demonstrated 

that Glasco’s testimony would have altered the outcome of the case. The trial 

court unequivocally stated that it did not find Hampton’s testimony credible 

“based on his demeanor and his inability to answer questions directly and 

actually just his whole personal demeanor as he testified to the extent that 

[Private Counsel] says that it’s one witness’s word against the others. I 

certainly find beyond a reasonable doubt that the victim in this case is credible.” 

(Trial Tr. pp. 111-12). Furthermore, the trial court found that “the events that 

[Hampton] said caused this all alleged fabrication occurred, prior to him, at 

least at a minimum giving money to purchase a bicycle, I mean—so it just 

doesn’t make sense to me.” (Trial Tr. p. 111). Thus, we cannot say that there 

is a reasonable probability that Glasco’s testimony about the boxer shorts and 

the bicycle would have caused the trial court to entirely discredit J.B.’s 

testimony.

[34] Hampton also attacks Private Counsel’s performance for failing to vigorously 

impeach J.B. with her previous statements. However, the post-conviction court 

concluded that Private Counsel provided reasonably effective assistance as he

extensively cross-examined the victim regarding her memory of 

the crimes, various factual inconsistencies and also regarding her 

and her [M]other’s motives for lying. Despite [Private Counsel] 

having highlighted what he viewed as problem areas, the court 

specifically found the victim to be credible, and it is difficult to 

see how addressing other specific issues would have provided the 

victim anything other than additional opportunities to reiterate 

her story.
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 25 of 33

(Appellant’s App. pp. 202-03). Throughout her child interview, deposition, the 

child hearsay hearing, and the bench trial, J.B. did not waver in her allegation 

that Hampton put his penis inside her butt. At the beginning of the bench trial, 

J.B. indicated knowing the difference between a truth and a lie and answered 

that the consequence of lying in court is that “[y]ou will go to jail.” (Trial Tr. p. 

12). During cross-examination, Private Counsel attempted to establish that 

Mother coached J.B.’s story, but when specifically asked what Mother told her 

to say, J.B. answered, “She told me to tell the truth.” (Trial Tr. p. 24).

[35] Hampton now argues that, during her deposition, J.B. “recanted her allegation 

and said she was ‘making it up[,]’” and Private Counsel should have presented 

this “outright admission of fabrication” during the trial. (Appellant’s Br. p. 28). 

Rather than following Hampton’s lead of excerpting one line from J.B.’s 

deposition, we look to the statement in its full context:

Q. Well, let me ask you, I just want to make sure that you’re 

telling the truth. You’re not—are you making any of this up, 

[J.B.], or is it all—did it all really happen?

A. I’m making it up.

Q. You’re making the whole thing up?

A. Well, it really happened.

Q. It really happened. Okay. But are you telling the truth?

A. Yes.

(Appellant’s Exh. B-2). From this colloquy, it could easily be concluded that 

J.B. was confused by the language of the question rather than that she was 

recanting her allegation. Thus, it was certainly reasonable for Private Counsel 

to elect not to impeach J.B. with this specific testimony. See Slusher v. State, 823 
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N.E.2d 1219, 1221 (Ind. Ct. App. 2005) (Our court “‘will not speculate as to 

what may or may not have been advantageous trial strategy as counsel should 

be given deference in choosing a trial strategy which, at the time and under the 

circumstances, seems best.’”) (quoting Whitener v. State, 696 N.E.2d 40, 42 (Ind. 

1998)).4

C. Ineffective Assistance of Appellate Counsel

[36] Third, Hampton claims that the post-conviction court erred in denying his 

petition for post-conviction relief because Appellate Counsel rendered 

ineffective assistance of counsel. “The standard of review for a claim of 

ineffective assistance of appellate counsel is the same as for trial counsel.” BenYisrayl, 729 N.E.2d at 106. In general, ineffective assistance claims at the 

appellate level “fall into three basic categories: (1) denial of access to an appeal, 

(2) waiver of issues, and (3) failure to present issues well.” Ritchie v. State, 875 

N.E.2d 706, 723 (Ind. 2007), reh’g denied.

[37] Rather than relying on any of the three recognized categories, Hampton 

contends that Appellate Counsel was ineffective by not invoking the 

Davis/Hatton procedure in light of the mistakes made by Public Defender and 

Private Counsel, and “[f]oregoing the procedure left [A]ppellate [C]ounsel with 

 

4

 Similarly, Hampton also points to testimony from Mother’s deposition indicating that J.B. had problems 

lying to her teacher and argues that “[n]o reasonably proficient attorney would fail to use such evidence at 

trial.” (Appellant’s Br. pp. 28-29). We first note that, again, Hampton has failed to provide the full context 

of Mother’s statement, which actually states that J.B. developed several problems at school after reporting the 

molestation. Second, a review of the transcript confirms that Private Counsel did, in fact, extensively 

question Mother during the bench trial about this line from her deposition.
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 27 of 33

an impaired sufficiency argument.” (Appellant’s Br. p. 31). The postconviction court found Hampton’s claim meritless “because of the [c]ourt’s 

ruling regarding the effectiveness of his trial counsel. Since, as the [c]ourt has 

found, Hampton’s trial counsel was not ineffective, it follows that Hampton’s 

[A]ppellate [C]ounsel was not ineffective for failing to develop a more complete 

record.” (Appellant’s App. p. 204).

[38] Sometimes, in order to establish “substandard counsel performance” where 

issues “are not visible at all on the face of the trial record,” additional 

investigation is necessary. Slusher, 823 N.E.2d at 1221-22. Thus, the

Davis/Hatton procedure allows for “a termination or suspension of a direct 

appeal already initiated, upon appellate counsel’s motion for remand or stay, to 

allow a postconviction relief petition to be pursued in the trial court.” State v. 

Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997), trans. denied. Subsequent to 

a full evidentiary hearing, if the petition for post-conviction relief is denied, “the 

appeal can be reinitiated.” Id. Along with the issues initially raised in the 

appeal, the issues litigated in the post-conviction relief proceeding may also be 

raised. Id. By utilizing this procedure, “a full hearing and record on the issue 

will be included in the appeal”; whereas, appellate counsel would otherwise be 

“forced to rely solely on the trial record.” Id.

[39] “We are highly deferential to [A]ppellate [C]ounsel’s decisions in deciding what 

issues to raise on direct appeal.” Graham v. State, 941 N.E.2d 1091, 1099 (Ind. 

Ct. App. 2011), aff’d on reh’g. Here, Appellate Counsel submitted an affidavit to 

the post-conviction court, averring that the record in Hampton’s case “was very 
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 28 of 33

sparse, and there was not much else to raise in the appeal other than 

sufficiency.” (Appellant’s App. p. 224). He further stated that he is “wellacquainted with the Davis/Hatton procedure (having worked for the Indiana 

Public Defender’s office),” and although he did not specifically recall making 

the choice to forego the Davis/Hatton procedure, he “normally do[es] not use it 

and in general think[s] it is best to leave these issues to be hashed out in a postconviction proceeding.” (Appellant’s App. p. 224). According to Hampton, 

our court rejected Appellate Counsel’s incredibly dubious testimony argument 

on direct appeal, but if Appellate Counsel had expanded the record using the 

Davis/Hatton procedure, “there is a reasonable probability the outcome of the 

direct appeal would have been decided in Hampton’s favor.” (Appellant’s Br. 

p. 31). Although it is not quite clear, Hampton appears to argue that if 

Appellate Counsel had accessed J.B.’s deposition, he could have successfully 

argued that her “testimony regarding the molestation was inherently 

contradictory or equivocal.” (Appellant’s Br. p. 31) (quoting Hampton, 921 

N.E.2d at 29).

[40] This court has previously found that “[i]n determining whether appellate 

counsel’s performance was deficient, we consider the information available in 

the trial record or otherwise known to appellate counsel. The role of appellate 

counsel should not be measured by information unknown to appellate counsel 

but later developed after the appeal by post-conviction counsel.” Seeley v. State, 

782 N.E.2d 1052, 1059 (Ind. Ct. App.) (internal citations omitted), trans. denied; 

cert. denied, 540 U.S. 1020 (2003). Furthermore, notwithstanding what 
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additional information Appellate Counsel may have garnered by suspending the 

appeal to pursue a post-conviction relief petition, we are not persuaded by 

Hampton’s argument that the outcome of his appeal would have been any 

different. As we previously stated, J.B.’s statement in her deposition that “I’m 

making it up”—when read in context with her subsequent clarification that “it 

really happened” and that she was telling the truth does not establish that her 

testimony at the bench trial was incredibly dubious. (Appellant’s Exh. B-2). 

Therefore, we find that Appellate Counsel did not render ineffective assistance 

of counsel by electing not to utilize the Davis/Hatton procedure.

III. Post-Conviction Discovery

[41] Finally, Hampton claims that the post-conviction court abused its discretion by 

failing to order specific discovery and by imposing a protective order against 

Hampton’s post-conviction counsel with respect to her efforts to obtain R.W.’s 

taped interview. In post-conviction proceedings, “[a]ll rules and statutes 

applicable in civil proceedings including pre-trial and discovery procedures are 

available to the parties.” P-C.R. 1(5). In general, “[p]arties may obtain 

discovery regarding any matter, not privileged, which is relevant to the subjectmatter involved in the pending action.” Ind. Trial Rule 26(B)(1). Like trial 

courts, “post-conviction courts are given wide discretion in discovery matters 

and ‘in determining what constitutes substantial compliance with discovery 

orders, and we will affirm their determinations as to violations and sanctions 

absent clear error and resulting prejudice.’” McManus, 868 N.E.2d at 790 
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 30 of 33

(quoting Dye v. State, 717 N.E.2d 5, 10-11 (Ind. 1999), reh’g denied; cert. denied, 

531 U.S. 957 (2000)).

[42] Pursuant to Indiana Trial Rule 34(A)(1), “[a]ny party may serve on any other 

party a request . . . to produce and permit the party making the request . . . to 

inspect and copy[] any designated documents or electronically stored 

information . . . which are in the possession, custody or control of the party upon whom 

the request is served” (emphasis added). The discovery rules additionally provide 

that “[u]pon motion by any party . . . and for good cause shown,” the court 

“may make any order which justice requires to protect a party or person from 

annoyance, embarrassment, oppression, or undue burden or expense,” 

including, in part, “that the discovery not be had[,] . . . that certain matters not 

be inquired into, or that the scope of the discovery be limited to certain 

matters.” T.R. 26(C)(1),(4). In this case, despite the State’s assurances that it 

did not possess, and was unaware of the existence of, Bowers’ taped interview 

with R.W., Hampton continued to demand the evidence from Detective 

Gehring-Cook and others. As a result, the post-conviction court granted the 

State’s request for a protective order to instruct Hampton to stop pursing the 

statement. Hampton now contends that

[t]he defense was hamstringed by the protective order, and given 

the fact Hampton’s theory of defense was Glasco’s family sought 

to exact revenge upon him due to the falling out over the 

apartment, the evidence was relevant and discoverable. To deny 

Hampton the evidence was unfair, and it should have been 

discovered in the first place before the May 8, 2009 bench trial.
Court of Appeals of Indiana | Memorandum Decision 49A04-1410-PC-484 | October 15, 2015 Page 31 of 33

(Appellant’s Br. p. 36).

[43] At the post-conviction hearing, Bowers reviewed an intake form from the Child 

Advocacy Center that she had prepared, which indicated that R.W. was prescheduled for an interview on January 18, 2008—the same day as her 

interviews with J.B. and D.B. The referral information on the intake form 

provided simply that “[R.W.’s] sister alleges [Hampton] had touched her. [The 

Department of Child Services (DCS)] needs [R.W.] interviewed, too.” 

(Appellant’s App. p. 501). Thus, Bowers testified that she personally 

interviewed R.W., and she wrote “N.D.” on R.W.’s intake form to denote that 

R.W. did not disclose any abuse. (Appellant’s App. p. 501). Bowers further 

testified that the taped interviews of J.B. and D.B. were given to Detective 

Gehring-Cook, whereas R.W.’s interview was provided to a DCS family case 

manager, Lucita Exom-Pope (FCM Exom-Pope), because R.W. did not make 

any allegations of abuse.

[44] Nonetheless, there is also evidence that although R.W. was scheduled to be 

interviewed, the interview may never have actually occurred. During Bowers’ 

interview with Rivers’ daughter, D.B. (who is R.W.’s younger sister and J.B.’s 

cousin), Bowers inquired as to why R.W. did not accompany D.B. to the 

interview. D.B. answered that R.W. was at school. Also that day, while 

speaking to Rivers, Bowers indicated that DCS still needed to interview R.W. 

Rivers indicated that she “thought [she] just needed [D.B.] here” or she “would

have kept [R.W.] out of school.” (Appellant’s Exh. I). In addition, Hampton 

submitted an affidavit of FCM Exom-Pope at the post-conviction hearing, who 
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averred that “DCS has no electronic or written records of reports or notes 

pertaining to any of the other children regarding the [J.B.] investigation, that 

have not been provided to [Hampton’s post-conviction attorney], including the 

children [D.B.] and [R.W.].” (Appellant’s App. p. 476). Detective GehringCook testified at the post-conviction hearing that she did not interview R.W., 

nor did she recall that any children other than J.B. and D.B. were interviewed 

by Bowers. There is no evidence that R.W.’s interview was rescheduled for a 

later date.

[45] The State is only capable of discovering evidence that is in its “possession, 

custody or control.” T.R. 34(A)(1). Our deference to the trial court’s credibility 

determinations is well established, and in this case, the trial court believed the 

State’s claim that it “made all reasonable efforts to locate the requested 

statement, and no such statement has been found[.] Moreover the State has not 

found any positive evidence that any such statement was ever taken.” 

(Appellant’s App. p. 73). Accordingly, we cannot say that the trial court 

abused its discretion by granting the State’s protective order and by not 

compelling specific discovery.

CONCLUSION

[46] Based on the foregoing, we conclude that the post-conviction court properly 

denied Hampton’s petition for post-conviction relief because he received 

adequate assistance of counsel at both the trial and appellate level. We further 

conclude that the post-conviction court acted within its discretion concerning 

the parties’ discovery dispute over R.W.’s alleged statement.
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[47] Affirmed.

[48] Vaidik, C. J. and Brown, J. concur