Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Charles E. Justise, Sr.

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Charles E. Justise, Sr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 28, 2019

Court of Appeals Case No.

18A-PC-1420

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

Trial Court Cause No.

49G06-1601-PC-3703

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019 Page 2 of 10

[1] After his Class A felony child molesting and Class C felony child molesting 

convictions were affirmed on direct appeal,

1 Charles E. Justise, Sr. (“Justise”) 

filed a petition for post-conviction relief in Marion Superior Court. The postconviction court denied Justise’s petition, and Justise appeals pro se.

2

Concluding that his claim of newly discovered evidence does not warrant a new 

trial and that his remaining claims are barred by the doctrines of res judicata 

and waiver, we affirm.

Facts and Procedural History 

[2] In our memorandum decision on Justise’s direct appeal, we set forth the facts 

underlying his conviction as follows:

On June 21, 2006, twelve-year-old D.B. spent the night at the 

home of Justise, her father, and Shawna Winston [“Winston”], 

her father's girlfriend. Justise and D.B. watched a movie, and 

D.B. fell asleep on a pallet on the floor in an upstairs bedroom. 

She awoke in the middle of the night when she felt Justise 

“feeling on her.” Tr. p. 63. Justise had pulled up D.B.'s shirt and 

bra and was touching her breasts with his lips. Justise told D.B. 

to go downstairs with him, and she did. Justise bent D.B. over 

one of the living room couches, removed her pants, and rubbed 

his penis against the cheeks of her buttocks for two to three 

minutes. Justise then moved D.B. to another couch where he got 

on top of her and tried to place his penis inside her vagina. There 

 

1 On June 22, 2009, Justise appealed his sentence and conviction, but this court later dismissed the appeal

with prejudice for failure to comply with the appellate rules. On September 6, 2011, we allowed a belated 

appeal. 

2 Justise filed a motion not to publish, which we interpret as a motion to make the case confidential as 

opposed to the publication of this opinion. By separate order, we deny this motion.
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was no penetration. Justise then placed D.B. on his lap, placed 

his finger inside her vagina, and moved it around in circles. 

Justise told D.B. that it was going to “tingle a little bit.” Tr. p. 71. 

Justise raised D.B. off of his lap and told her to “remember [that] 

this never happened.” Tr. p. 72. D.B. went upstairs and cried. 

A few days later, D.B. told both her aunt, Ashley Jackson

[“Jackson”], and Winston what had happened. Winston 

informed D.B.'s mother about the molestation. When D.B. 

confirmed to her mother what had occurred, D.B.'s mother 

contacted the Indianapolis Metropolitan Police Department. 

D.B. was interviewed at Child Protective Services and examined 

by Methodist Hospital Sexual Assault Nurse Linda Kelley

[“Kelley”]. Kelley noticed that D.B. showed notches or clefts on 

her hymen that could have been caused by something inserted 

into her vagina. 

Detective Gregory Norris was assigned to the case. During his 

investigation, the detective downloaded recordings of telephone 

calls between Justise and Winston and Justise and D.B. while 

Justise was incarcerated in the Marion County Jail on other 

charges during June and July 2006. Many of the telephone calls 

made during that time period were not recorded. According to 

Buzz Michael, the keeper of inmate phone records at the Marion 

County Jail, the system failed to download approximately 90,000 

phone calls due to a system wide failure. The logs indicated that 

the calls had been made, but the recordings did not exist. 

Michael explained that there was “no rhyme or reason behind 

which calls were lost and which calls were kept.” Tr. of Pre-trial 

Hearing p. 17. 

In October 2006, the State charged Justise with two counts of 

child molesting as class A felonies, three counts of sexual 

misconduct with a minor as class B felonies, child molesting as a 

class C felony, and two counts of sexual misconduct with a 

minor as class C felonies. Justise represented himself at the 

October 2008 trial. The State introduced into evidence recordings 

of telephone calls between Justise and D.B., which were recorded 
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while Justise was incarcerated in the Marion County Jail. In one 

of the telephone calls, D.B. confronted Justise about touching her 

and placing his finger in her vagina. She told him that she was 

not lying and quoted his comment to her that his finger in her 

vagina would “tingle a little bit.” Ex. 18 p. 7. 

Also during trial, Justise wanted to question Jackson about a 

phone conversation she had with D.B. According to Justise, D.B. 

told her aunt that she fabricated the molestation because she 

wanted to hide the fact that she had sexual intercourse with a boy 

name Jason. Justise wanted to introduce into evidence D.B.'s 

prior sexual history, but the trial court refused to allow him to do 

so because this evidence violated Indiana Evidence Rule 412 and 

was therefore inadmissible. Justise denied molesting his 

daughter. 

A jury convicted Justise of the two counts of child molesting as 

class A felonies and one count of child molesting as a class C 

felony. At the sentencing hearing, the trial court merged the two 

class A felony convictions for double jeopardy purposes and 

sentenced Justise to forty-five years for the class A felony, and six 

years for the class C felony, with the sentences to be served 

consecutively, for an aggregate term of fifty-one years. Justise 

received permission to file a belated appeal in September 2011.

Justise v. State, No. 49A02-1105-CR-408, slip op. at 1–2 (Ind. Ct. App. May 22, 

2012), trans. denied.

[3] On direct appeal, Justise presented three issues: (1) whether his due process 

rights were violated when the State failed to disclose exculpatory evidence in 

violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) whether the trial court 

erred in refusing to allow Justise to impeach the victim with evidence of her 

prior sexual history; and (3) whether there was sufficient evidence to support his 

conviction. A panel of this court rejected Justise’s claims, holding: (1) there was 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1420 | June 28, 2019 Page 5 of 10

no evidence for the prosecution to suppress because the phone calls which 

Justise complains of were not recorded, and if there is no evidence to suppress, 

there is no Brady violation; (2) the victim’s alleged sexual history does not fall 

into one of the enumerated exceptions of Rule 412, and therefore, the trial court 

did not err by excluding the challenged evidence under Rule 412; and (3) 

Justise’s argument regarding the victim’s testimony at trial was nothing more 

than an invitation for the court to reweigh the evidence, which the court cannot 

do. Id. at *2–3. Justise filed a petition to transfer his case to the Indiana 

Supreme Court, but that court denied the petition. 

[4] On January 22, 2016, Justise filed a pro se petition for post-conviction relief. In 

his petition, Justise claimed that (1) the State committed Brady violations; (2) he 

was denied the effective assistance of trial counsel; and (3) there was newly 

discovered evidence. On May 1, 2017, Justise amended his petition to add a 

claim of prosecutorial misconduct. The post-conviction court held an 

evidentiary hearing on September 21, 2017. Both parties then submitted 

proposed findings of fact and conclusions of law, and on May 18, 2018, the 

post-conviction court issued its findings of fact and conclusions of law denying 

Justise’s petition for post-conviction relief. The post-conviction court concluded 

that D.B. acknowledged the allegations of inappropriate sexual contact she 

made against Justise, and D.B. indicated her testimony at trial was untruthful 

and that Justise had never touched her. The court, however, did not find D.B. 

credible and assigned no weight to her testimony. Further, the court held that 
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the issue of D.B.’s recantation was not a new issue, as it was addressed several 

times in Justise’s Court of Appeals decision. Justise now appeals. 

Standard of Review

[5] Our standard of review of claims that a post-conviction court erred in denying 

relief is well settled. That is, post-conviction proceedings are not “super 

appeals” through which convicted persons can raise issues they failed to raise at 

trial or on direct appeal. Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 

2014), trans. denied. Instead, post-conviction proceedings afford petitioners a 

limited opportunity to raise issues that were unavailable or unknown at trial 

and on direct appeal. Id. A post-conviction petitioner bears the burden of 

establishing grounds for relief by a preponderance of the evidence. Id. Thus, on 

appeal from the denial of post-conviction relief, the petitioner stands in the 

position of one appealing from a negative judgment. Id. To prevail on appeal 

from the denial of post-conviction relief, the petitioner must show that the 

evidence as a whole leads unerringly and unmistakably to a conclusion opposite 

that reached by the post-conviction court. Id. 

[6] As required by Indiana Post-Conviction Rule 1(6), the post-conviction court 

entered findings of fact and conclusions of law. Therefore, we must determine if 

the court's findings are sufficient to support its judgment. Manzano, 12 N.E.3d 

at 325. We review the post-conviction court’s factual findings under a clearly 

erroneous standard, i.e., we will not reweigh the evidence or judge the 

credibility of witnesses, and we will consider only the probative evidence and 
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reasonable inferences flowing therefrom that support the post-conviction court’s 

decision. We do not defer to the post-conviction court’s legal conclusions, 

which are reviewed de novo. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). 

Discussion and Decision 

[7] First, Justise complains that the post-conviction court failed to address his Brady 

violation claim and his claim that the trial court should have admitted evidence 

that he contends would have impeached Jackson’s testimony. The State asserts 

that these claims are barred by res judicata or waiver. The doctrine of res 

judicata “prevents the repetitious litigation of that which is essentially the same 

dispute.” State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). Issues that were 

raised and decided on direct appeal are res judicata and may not be litigated 

again on post-conviction review. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 

2000). “[W]here an issue, although differently designated, was previously 

considered and determined upon a criminal defendant’s direct appeal, the State 

may defend against defendant's post-conviction relief petition on grounds of 

prior adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047, 1049 

(Ind. 1984).

[8] On direct appeal, Justise unsuccessfully argued that the State committed a 

Brady violation with respect to the phone calls between himself and the victim. 

Here, Justise raises the same Brady violation claim, and it is therefore barred by 

res judicata. See Ben-Yisrayl, 738 N.E.2d at 259. 
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[9] Similarly, on direct appeal, Justise argued that the trial court should have 

allowed him to admit impeachment evidence concerning the victim’s prior 

sexual history.3 Justise now argues that, “Jackson should have been allowed to 

testify as to D.B. telling her that Justise never touched her. Proper foundation

was laid for impeachment.” Appellant’s Br. at 3. Issues that were known and 

available, but not raised, on direct appeal are waived, or procedurally defaulted, 

and may not be raised in the post-conviction process. Bunch v. State, 778 N.E.2d 

1285, 1289 (Ind. 2002). Justise could have raised this issue on direct appeal but 

chose not to. Therefore, the claim is waived. 

[10] Finally, Justise argues that the post-conviction court incorrectly rejected relief 

on his claim of newly discovered evidence. At the post-conviction hearing, D.B. 

testified under oath that she had never been inappropriately touched by Justise 

and that Justise never did “anything physical” with her. Tr. p. 14.

[11] In considering whether to set aside a conviction and grant a new trial on the 

basis of newly discovered evidence, Indiana courts apply a nine-part test: 

New evidence will mandate a new trial only when the defendant 

demonstrates that: (1) the evidence has been discovered since the 

trial; (2) it is material and relevant; (3) it is not cumulative; (4) it 

is not merely impeaching; (5) it is not privileged or incompetent; 

(6) due diligence was used to discover it in time for trial; (7) the 

evidence is worthy of credit; (8) it can be produced upon a retrial 

 

3 Justise does not appeal the denial of post-conviction relief on the grounds of ineffective assistance of counsel 

that he raised in his petition. 
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of the case; and (9) it will probably produce a different result at 

retrial. 

Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010) (quoting Taylor v. State, 840 

N.E.2d 324, 329–30 (Ind. 2006)). These nine factors are analyzed with care, “as 

‘the basis for newly discovered evidence should be received with great caution 

and the alleged new evidence carefully scrutinized.’” Id. (quoting Taylor, 840 

N.E.2d at 330). 

[12] Here, the post-conviction court concluded that the admission of the victim’s 

testimony at a new trial would be offered as merely impeaching evidence. We 

agree. D.B.’s testimony at the post-conviction hearing was not new substantive 

evidence but was merely impeaching of what she had previously testified under 

oath. This testimony at the evidentiary hearing only serves to undermine her own 

credibility, and thus, Justise has failed to establish the fourth prong of the test. 

[13] The post-conviction court also concluded that D.B.’s testimony at the postconviction relief evidentiary hearing was not worthy of credit. The court had 

the opportunity to hear D.B. testify multiple times regarding the molestation. 

During her trial testimony which resulted in Justise’s convictions, D.B. did not 

waver in her accusations. Additionally, the court concluded that D.B. related 

the same facts she testified to at trial to a forensic interviewer, Linnett Garcia, 

who described D.B. as “very forthcoming.” Appellant’s App. Vol. 2, p. 238. 

D.B. remained consistent in her accusation against Justise during a pretrial 

deposition. During a recorded pretrial jail conversation between D.B. and 

Justise, D.B. asked Justise specifically about the molestation. Id. In sum, the 
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court found D.B.’s testimony at the evidentiary hearing not worthy of credit as 

D.B.’s prior testimony was too clear, precise, and forthcoming to ignore now. 

Thus, Justise had failed to meet his burden of proving the seventh prong of the 

newly discovered evidence test. We agree with the trial court that D.B.’s 

testimony is not worthy of credit. 

[14] Therefore, the alleged newly discovered evidence is not supportive of a different 

result at retrial, and there is no merit to Justise’s claims. Justise’s argument to 

the contrary is nothing more than a request for us to reweigh the evidence on 

appeal, which we will not do. 

Conclusion 

[15] The issues Justise raised in his petition for post-conviction relief were either 

addressed on direct appeal, and therefore res judicata, or known and available 

to him at the time of his direct appeal, and therefore waived. Furthermore,

Justise is not entitled to a new trial based on his claim of newly discovered 

evidence because D.B.’s recantation of her trial testimony was merely 

impeaching and because the post-conviction court determined that her 

testimony at the post-conviction evidentiary hearing was not credible. 

Accordingly, we affirm the court’s denial of Justise’s petition for postconviction relief. 

[16] Affirmed.

May, J., and Brown, J., concur.