Pursuant to Ind. Appellate Rule 65(D), this

Mem orandum 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 : ATTORNEYS FOR APPELLEE : CAROLINE B. BRIGGS GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

STEVEN KAMP , ) ) Appellant

- Petitioner , ) ) vs. ) No. 66A05

- 110 9

- PC

- 485 ) STATE OF INDIANA, ) ) Appellee

- Respondent

. )

APPEAL FROM THE PULASKI SUPERIOR COURT The Honorable Patrick B. Blankenship , Judge Cause No. 66D01

- 0505

- FC

- 2

June 28, 2012 MEMORANDUM DECISION

– NOT FOR PUBLICATION BAKER, Judge2

A ppellant

- petitioner Steven Kamp appeals the denial of his petition for post

conviction relief, claiming that his defense counsel’s illnesses and disabilities amounted to ineffective assistance of c ounsel. Specifically, Kamp argues that he was entitled to relief because a number of traumatic injuries and medical difficulties that his trial counsel sustained, including severe injuries that he received in a courthouse bombing , resulted in an inability to effectively represent him at trial. Concluding that the post

- conviction court properly denied Kamp’s request for relief, we affirm.
FACTS 1 The facts, as reported in Kamp’s direct appeal are as follows: Tina Cress had two children, H.C., a seven

- y ear - o ld daughter, and K.C., a ten

- y ear - old son, by her ex

- husband, Craig Cress. Kamp and Tina had been involved in a relatio nship for almost three years, had been living to gether f

or almost two years, and had just gotten engaged. On May 10, 2005, Kamp came ho me from work at around 6:30 p.m. and drank five beers. The children were put to bed around 8:00 p.m., and Kamp and Tina argued about her ex

- husband. Around 8:30 or 9:00 p.m., Kamp asked Tina if she was going to bed, and Tina told him she was going to sta y up to watch the news. Kamp became upset, went to bed, got back up to get a drink of water, and argued with Tina because she would not go to bed. Tina fell asleep on the couch. Later that evening, Kamp entered H.C.’s room, unbuttoned his buttons on his pajama pants, grabbed H.C.’s wrist, and made H.C. touch his penis, which was “[s]quishy and soft. . . .” H.C. tried to pull her arm back, but Kamp was too strong and pulled H.C.’s arm back. Kamp eventually left the room after about ten minutes and went t o bed. H.C. went a nd lay on the couch next to Tina because she was scared that Kamp was going to do it again and do it to Tina. Tina wok e up in the middle of the night to find H.C. lying on the couch with her. In the morning, Tina woke her children and go t them breakfast as usual. H.C. ate her breakfast, went into the bathroom, and

1 We heard oral argument in this case in Indianapolis on May 22, 2012. We commend counsel for their able written and oral presentations.3

asked Tina to come into the bathroom bec ause she wanted to tell her something. H.C. told Tina that K amp had gone into her room, grabbed her wrist, and made her touch his “[p]e e - pee.” Id. at 189. H.C. also told Tina that she tried to pull away but Ka mp was too strong and would not let go of her. Tina took H.C. into the garage and asked H.C. to explain what had happened, and H.C. told Tina the same story again. H.C. would not go back into the house to get dressed for school because she was scared , so Tina brought H.C.’s clothes to the garage. Tina woke up Kamp and told him that he needed to get out of the house. When Kamp asked what was going on, Tina told Kamp what H.C. had t old her, and Kamp said “awe [sic] come on” and did not take the situation seriously. Id. at 192. Kamp told Tina that the three of them needed to sit down and talk. Tina asked H.C. to come inside and told H.C. that Kamp wanted to tell her something. Kam p told H.C. that she was having a dream in the middle of the night, that he went into her room, shook her, and woke her to tell her that she was dreaming. H.C. told Kamp that he was lying. Tina then took the children and left. Tina dropped the children off at school and returned home. When Tina returned home, Kamp told her that she should keep an eye on the sky because it looked like it was going to storm. Tina “went off,” and said, You really think I’m concerned on [sic] what the weather is going to do today,” and decided to leave. Id. at 195. Tina went to her sister’s house and then picked up H.C. from school. Tina called Craig to tell him about the situation, and Tina and H.C. met Craig at a park. They then left the park and drove to the police s tation. Winamac Police Officer Mike Buchanan interviewed H.C. and videotaped the interview. Kamp v. State , No. 66A05

- 0604

- CR

- 202 (Ind. Ct. App. Mar. 20, 2007).
On April 13, 2005, Kamp was charged with child molesting, a class C felony. Thereafter, he re tained Charlie Scruggs as his defense counsel

. During Kamp’s jury trial, Scruggs introduced the defense theme that, while admitting that Kamp’s penis was in H.C.’s hand at some point, there would be no proof of the intent to arouse the sexual
desire of an yone involved. Scruggs attempted to establish that the touching was not4

sexual in nature because H.C. grabbed Kamp’s penis when he attempted to wake her
from a bad dream. Scruggs also emphasized in his opening argument that the jurors were to look beyo nd the stigma of child molest allegations to determine whether proof existed to satisfy all the elements of the crime. Scruggs established during cross

- examination that Kamp was wearing boxer shorts on the night of the incident and that H.C. believed that she was dreaming about Daniel Ingram on the night of the incident. Ingram knew Kamp because a friend of his mother’s had been dating Kamp , and that person was H.C.’s mother. Kamp’s jury trial resulted in a verdict of guilty, and on March 14, 2006, he w as sentenced to eight years in the Indiana Department of Correction (DOC). Kamp rais ed several evidentiary errors, challeng ed the sufficiency of the evidence , and the propriety of the sentence that was imposed

. In our unpublished memorandum decision, we affirmed Kamp’s conviction and sentence in all respects

. On September 1, 2010, Kamp filed a petition for post

- conviction relief, alleging that he was denied the effective assistance of trial counsel. In part, the petition alleged that Counsel for the Petitioner was quite ill at the time of trial and during pre

trial proceedings, including trial preparation. Trial counsel previously was known to h ave had the level of skill and competence to undertake a serious criminal trial; however, counsel was so il l that he did not perform at h i s usual level of skill and competence . He did not obtain discovery he typically would have obtained and that he had in fact requested and promised to obtain. During the trial, counsel was suffering from physical5

manifestati ons of his illness, including but not limited to, tinnitus and headaches and was unable to perform at times. Counsel requested, but was not provided, a recess due to his illness. Counsel failed t o properly prepare for trial, call witnes ses and/or appropr iately object, research and argue at trial. It is not believed that counsel would have failed to use his training and skill but for counsel’s serious illness. Shortly after sentencing, counsel took his own life believed to be due to the intense physical suffering he had endured. All trial errors in post

- convi c tion proceedings are now raised under ineffective assistance of counsel. Therefore, Petitioner Kamp includes all errors raised or which should have been raised at trial and in the transcript herein

. Appellant’s App. p. 22. The post

- conviction court conducted an evidentiary hearing on January 27, 2011

. At the hearing, Kamp testified on his own behalf and Ingram was also called to testify. Ingram testified that he saw H.C. approximately two or thr e e times per month at the residence. However, he did not remember anything about the day that the molestation
occurred , other than that he and H.C. had been watching television earlier that afternoon. Kamp was unaware that H.C. may have been having dreams about him. Ingram was not at the residence when the molestation happened, and he had not been interviewed by Kamp’s trial counsel or law enforcement officials prior to trial

. Kamp also offered the testimony of Stephanie Doran, an attorney who had share d office space with Scruggs. Doran acknowledged that Scruggs had been a very competent lawyer and tended to be very thorough when preparing for trial. Although Doran and Scruggs had adjoining offices, Doran did not attend Kamp’s trial, nor had she read t he trial transcripts. Doran testified that she thought Scruggs’s tinnitus affected his ability to6

concentrate at times, and she believed that he was becoming more depressed in light of his physical ailments. Scruggs’s paralegal , Stephanie Blackman, test ified at the post

- conviction hearing that Scruggs had not been feeling well during the trial. Blackman knew that Sc ruggs had “a very bad headache [and] his leg was aching.” Appellant’s App. p. 205

- 06. Blackman believed that Scruggs was not putting forth his best effort at trial, and he had to “lie down
in his car [at some point] because his head hurt very bad.” Id. Blackman was also familiar with Scruggs’s handwriting. Blackman reviewed a Pulaski County Department of Child Services report concerning H.C. , and recognized that Scruggs had made a statement in his handwriting that “FCM [Family Case Manager] informed Officer Mike Buchanan that there have been past reports of sexual abuse occurring with other siblings.” App ellant’s App. p. 301. Scruggs han dwrote the word “deposition” with an exclamation point next to the place where Office r Buchanan’ s name is circled. Id. at 160. Blackman found it “extremely uncharac teristic ” of Scruggs that he did not take Officer Buchanan ’s deposition “ after that report

. ” Id. at 163 . In fact, based on her knowledge of Scruggs, Blackman found it “inexplicable” why Scruggs would not have explored that issue because the CPS report suggests that there may have been three investigation s of substantiated instances of sexual abuse where H.C. resided.
O n June 8th, 2005, Scruggs entered his appearance for Kamp and moved for discovery and i nspection that same day

. Blackman reviewed the m otion and identified it7

as the typical form of discovery motion that Scruggs would use. Sc ruggs also filed a motion to produce the Home Study report. At the post

- conviction hearing, Blackman was asked the following: Q: There was a reference to prior [sic] in Exhibi t 2 that you mentioned and didn’ t explore to three (3) prior investigation num bers with sexual abuse with substantiation dates in 2002 and 2003. Do you recall mentioning that?
A: Yes. Q: Now is that something that Charlie would typically have investigate d in a sex crime? A: Absolutely. Q: And why would he have done so? A: To go t o the heart of the case. The credibility of the all eged victim. The alleged victim’ s mother. Q: And is that standard procedure for him in your office, when you were working for him?
A: Yes. Q: All right. A: I mean unfortunately, I wish I could, I can’t c onceive, it’ s just inexplicable that there was nothing further done once he received that report. Appellant’s App. p. 176

. Blackman also reviewed a motion to produce a H ome S tudy. K amp had advised Scruggs that a Home S tudy existed where there were alleg ations of the other sexual abuse with H.C. and her biological father and showering together.8

On August 18th, 2005, Scruggs wrote the deputy prosecutor regarding th e Home S tudy , stating To date I have not received the case reports study, which is giving m e heartburn. I need that desperately as soon as possible in order so I can give you an answer as to your plea agreement offer. Further, I will need it in o rder to prepare for trial and I’ m quite sure there may be other evidence that will be disclosed in t here that I will need to chase down

. Appellant’s App. p

. 637.
T he H ome Study was never produced prior to the trial in this matter. As a result, Blackman was also asked: Q: Do you , based upon your knowledge of Charlie and this case and his Motion to Pr oduce , are you aware of any reason why he would abandon the request for the Home Study?
A: No. Q: Can you think of any conceivable strategical reason that he would do so? A: None what so ever. Id. at 168. At some point, the Home Study was obtained for th e post

- c onviction proceedings. This Home Study was conducted by attorney Michael Boonstra that involved custody proceedings with regard to H.C . and her mother and father in the Cass Circuit Court. Th e report reflects that the other child in the hom e had b een molested by a sister’ s son. A lso,
H.C. ’s mother was complaining about the stepmother showering with the two (2) minor boys in the home. More particularly, the report states, “this is not good since he was9

caught molesting K. in the past.” H.C.’s mot her also indicated that that H.C. has allegedly showered “with [the father and stepmother]. ” Appellant’s App. p. 624. Although not available at trial, the CCS in Cass Circuit Court reflects that on June 26, 2009, overnight visitation was suspended in the biological fat her’ s home

. The Hom e Study also reflected that H.C’ s mother had been s exually molested by her brother

- in

- law when she was approximately eight to ten years old. The CCS in Kamp ’ s case reflects that on September 8, 2005 , the trial court orde red the director of Child Protective Services of Pulaski County to appear and answer why she should not be held in contempt for failing to produce a Home Study case report. Nowhere does it appear that Scruggs asked for the director of Cass County to produ ce such a report. On September 12, 2005, Scruggs appeared with the S tate and the Rule to Show Cause was dismissed because it was determined that the Home Study report was from Cass County and not Pulaski County

. Kamp called a ttorney Larry Hanson to testify as an expert witness. He reviewed the trial transcript and discovery inc luding a motion to produce the Home S tud y that was filed on September 6, 2005. H anson testified that the depositions Scruggs took were “woefully inadequate” and did not explore certa in areas of defense. App ellant’s App. p.
216. Scruggs did not inquire about “ dream talking ” that H.C. had been doing even though it appeared to be a rather common event. Scruggs also did not explore any apparent contradictions in the police report with regard to H.C.’s mother’s deposition testimony.10

Hanson determined that Scruggs’s investigation regarding I ngram about whom H.C. had been allegedly dreaming about was inadequate. Hanson also believed that a psychologist should have been consulted because of the other allegations of sexual abuse in the home. Hanson was of the opinion that without an investigation as to th is prior abuse, no conclusions could be drawn as to whether H.C. was lying, confused , or telling the truth. Hanson also was of the opini on that the depositions of Ingram , two police officers, and the investigator from CPS should have been taken. Hanson and Blackman both testified that it was out of character for a defense attorney in a sex crimes cases not to investigate alternate explan ations of abuse, especially when there was alleged prior sexual abuse in the family, and when the defendant was allegedly not sexually aroused during the event. Following the hearing, the post

- conviction court entered findings of fact and conclusions of la w denying Kamp’s request for relief. S ome of the se findings were that
FINDINGS OF FACT 9. That Petitioner presented a witness not interviewed by the police or Petitioner’s counsel, who at the time of the crime, was a teenager. This witness was present in the house the day before the molestation occurred. This witness was not present in the house when the molestation occurred. 10. Petitioner presented two witnesses who testified that counsel appeared to suffer from depression and other debilitating ph ysical symptoms of his illness

. 11. Petitioner also presented witness Larry Hanson, attorney from Hamilton County, who testified that counsel was essentially ineffective because expert witnesses were not called to challenge the voluntariness of11

Petitione r’s statement to police and to challenge the truthfulness of the victim’s statement.

. . . 14. Scruggs filed a motion to continue jury trial and a motion to produce a home study report relating to the victim. 15. Scruggs appeared with Kamp at a Rule t o Show Cause why Pulaski County Child Protective Services should not be held in Contempt for failing to produce a home study. 16. Scruggs negotiated two plea agreements with the State and submitted to the Court for its approval. 17. That at the trial, during voir dire, Scruggs argued that while Kamp’s penis was in the hand of the victim, there would be no proof of the intent to arouse the sexual desires of anyone involved. 18. That during opening statements, Scruggs stated that there was no dispute tha t Kamp’s penis was briefly in the victim’s hand while she was in bed. 19. That Scruggs’ trial strategy was to argue that the victim was having a dream about a teenage boy at the time of the incident, and while dreaming, inadvertently grabbed Kamp’s penis that was exposed through his boxer shorts. 20. That t hrough effective cross examination, Scruggs established that Kamp was wearing boxer shorts. 21. That through effective cross examination, Scruggs established the victim was dreaming about a teenage boy. 22. That through effective cross examination, Scruggs established that Kamp’s penis was not erect at the time of the incident. 23. That the trial record shows that Scruggs intentionally failed to object to [Kamp’s] taped statement but did not do s o because Scruggs and Kamp believed the tape showed that Kamp was innocent and had nothing to hide.12

Appellant’s App. p. 130A. The post

- conviction court determined that Kamp failed to sustain his burden of proof that Scruggs’s performance was deficient in any way. It was noted that Scruggs’s strategy was to acknowledge that there was a touching by the juvenile of Kamp’s penis, however, that touc h ing was accidental, unintentional, and not meant to either arouse the juvenile or Kamp. With that strategy em ployed, Scruggs was eliminating the false confession’s expert or repressed memory expert. Scruggs’ apparent strategy w as to tell K amp ’ s version of the truth, rather than to throw so many different “possible” reasons for the child to be lying, that Kamp and Scruggs look fo olish to the jury. Although many attorneys do not adhere to an old but wise axiom, “Truth is your best defense,” Attorney Scruggs seemed to be employing that strategy. The truth is always an objectively reasonable standard of performan ce. Just like any trial strategy, the jury can either believe the truth or not. Kamp has also failed to prove that he was prejudiced by his attorney’s performance. There is zero evidence that a different strategy would have resulted in a different outco me. Kamp only speculates that a different trial approach would result in a different outcome

.

. . . While the evidence does support that Scruggs was ill, the seriousness of the illness was not readily apparent to the Court or any casual observer . Only t wo witnesses testified as to the severity of Scruggs’ illness, and neither one was a medical expert. The witnesses, on e an attorney who knew Scruggs very well and considered him a mentor, and the other his long time paralegal. . . . The present case demo nstrates an attorney who was able to argue pre - trial motions, opening arguments, voir dire, cross examinations, proper objections and closing arguments. Scruggs also negotiated two plea agreements that were rejected by the Court

. Counsel exhibited no visible signs of distress at any time either in trial preparations or during the trial other than a head ache. Counsel never sought to renew his motion for a recess because his illness was more severe nor did his paralegal express any concern to the Court or Court personnel. A review of the reco rd reveals nothing that would r ise to the level . . . that Scruggs labored under circumstances that were so unfair and arbitrary that Kamp was denied his right to counsel

.13

Appellant’s App. p. 130 D, E (emphases a dded). In denying Kamp’s request for post

- conviction relief, it was concluded that the evidence presented, at best, supports the idea that two other attorneys

— Doran and
Hanson

— would have used a different trial strategy. The post

- conviction court noted tha t neither Doran nor Hanson ever had a conversation with Scruggs about the Kamp case , and neither of them had reviewed Scruggs’s original case file. Kamp now appeals.
DISCUSSION AND DEICISION
I. Standard of Review Ge nerally ; Post

- Conviction Relief We ini tially observe that the petitioner in post

- conviction proceeding s bears the burden of establishing the grounds for relief by a preponderance of the evidence. Ind.
Post

- Conviction Rule 1(5); Fisher v. State , 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post

- conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment of the post

- conviction court unless the evidence as a whole unerringly and unmista kably leads to a conclusion opposite that reached b y the post

- conviction court. Id

. Put another way, the defendant must convince us that there is “no way within the law
that the court below could have reached the decision it did.” Stevens v. State , 770 N.E.2d 739, 745 (Ind. 2002). A post

- c onviction court’ s findings and judgment will be reversed only upon a showing of clear error, that which leaves us with a definite and firm14

conviction that a mistake has been made. Fisher , 810 N.E.2d at 679. In thi s review, findings of fact are accepted unless they are clearly erroneous and no deference is accorded to conclusions of law. Id. The post

- conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.
II. Ineffe ctive Assistance of Counsel In addressing Kamp’s claim of ineffective assistance of counsel, we note that he must establish the two components set forth in Strickland v. Washington , 466 U.S. 668 (1984). First, a d efendant must show that counsel’s performa nce was deficient. Id. at 687. This requires a showing that counsel’ s representation fell below an objective standard of reasonableness and that “counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by t he Sixth Amendment.” Id. In other words, the standard asks whether, “considering all the circumstances,” counsel’s actions were “reasonable[] under prevailing professional norms.” Id. at 688. Second, a defendant must show that the deficient performance p rejudiced the defense. Thi s requires showing that counsel’ s errors were so serious as to deprive the defendant of a fair trial, that is, a trial w here the result is reliable. Id

. To establish prejudice, a defendant must show that there is a reasonable pr o bability that, but for counsel’ s unprofessional errors, the result of the proceed ing would have been different.” Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. We “strongly presume” that counsel provided adequate assistance and exercised reasonable15

professional judgment in all significant decisions. McCary v. State , 761 N.E.2d 389, 392 (Ind. 2002). Additionally, c ounsel is to be afforded considerable discretion in the choice of strategy and tacti cs. Timberlake v. State , 753 N.E. 2d 591, 603 (Ind. 2001). Counsel’ s conduct is assessed based upon the facts known at the time and not through hindsight.
State v. Moore , 678 N.E.2d 1258, 1261 (Ind. 1997). We do not “second

- guess” strategic decisions req uiring reasonable professional judgment even if the strategy in hindsi ght did not serve the defendant’ s interests. Id. In other words, trial strategy is not subject to attack through an ineffective assistance of counsel claim, unless the strategy is so d eficient or unreasonable as to fall outside of the objective standard of reasonableness. Autrey v. State , 700 N.E.2d 1140, 1141 (Ind. 1998). In addition to the standard of review set forth above, Kamp maintains that he is also seeking review and is entitl ed to relief pursuant to the United States Supreme Court’s
decision in United States v. Cronic , 466 U.S. 648 (1984). Kamp alleges that in accordance with Cronic , he does not believe that it is necessary to show prejudice because Scruggs’s illness made hi m effectively unavailable to assist Kamp. More particularly, in Cronic , the United States Supreme Court recognized a narrow exception to the Strickland requirement that a defendant who asserts ineffective
assistance of counsel must demonstrate that the de ficiency prejudiced the defense. Florida v. Nixon , 543 U.S. 175, 190 (2004). Cronic established that a presumption of prejudice was appropriate in “circumstances that are so likely to prejudice the accused16

that the cost of litigating their effect in a pa rticular case is unjustified.” Cronic , 466 U.S. at 658. As our Supreme Court explained in Conner v. State , 711 N.E.2d 1238 (Ind. 1999): The Cronic Court identified three situations that would justify this presumption [of prejudice] : (1) when counsel is completely denied; (2) when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and (3) when surrounding circumstances are such that, “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Id. at 1254

- 55. In support of his i neffective assistance of counsel claim s , Kamp directs us to paralegal Blackman’s post

- conviction hearing testimony. Blackman recounted the incident about the bombing of the Howard County courthouse in the 1980s and described how it had affected Scruggs

. Blackman observed that Scruggs walked with a limp because shrapnel could not be removed from his leg, his neck had been broken twice, and the bombing cause d him to suffer from tinni tus. Two or three years prior to Scruggs’s death, Blackman noticed significant medical changes in Scruggs’ health. For instance, Scruggs became depressed in light of his physical ailments and Blackman believed that the tinnitus affected Scruggs’s ability to concentrate at times. Blackman testified that Scruggs suffered headaches during the trial and thought that he was probably no t “putting forth his best effort” at trial

. Appellant’s App. p. 205

- 06.17

Also, Doran found it very uncharacteristic that Scruggs did not depose one of the police officers in response to prior reports of alleged sexual abuse involv ing H.C. and her other siblings. Doran believed that Scruggs typically would have investigated prior allegations of sexual abuse in the victim’s home. Kamp also points out that Scruggs failed to request a Home Study that had been generated regar ding prior instances of child molesting of H.C. When the Home Study had been o btained in time for the post

- conviction hearing, it contained allegations that H.C. had been showering with her father and stepmother. Overnight visitation had been suspended i n the biological father’s home

. Kamp alleged that Scruggs never asked personnel in Cass County to produce the report. As noted above, a ttorney Hanson testified as an expert witnes s for Kamp . He reviewed the transcript and discovery , including Scruggs’ s m otion to produce the Home Study that had been filed on September 6, 2005. Hanson was of the opinion that the depo sitions Scruggs had taken were “woefully in adequate” and did not explore various theories of defense. Appellant’s App. p. 216. More parti cularly, Scruggs did not inquire about H.C.’s dream and did not explore the contradictions in the police report with regard to the mother’s deposition testimony. Hanson also believed that Scruggs should have consulted a psychologist in light of the other allegation s of sexual abuse in the home.
Hanson also thought that Scruggs should have taken additional depositions. In light of these circumstances, Kamp maintains that Scruggs was unable to make reasonable strateg ic decisions and was unable to assist K amp in preparing and trying the18

case. Kamp asserts that the evidence at the post

- conviction hearing establishes that Scruggs was not functioning as he normally did and did not conduct the investigation and trial as he typically did when he was health y. Notwithstandin g Kamp’s contentions, the record demonstrates that Kamp has failed to show that 1) defense counsel was completely denied ; 2) trial counsel entirely fail ed to subject the State’s case to meaningful adversarial testing; and (3) the
surroundi ng circumstances made it impossible for even a fully competent attorney to provide effective assistance. Indeed, Scruggs entered his appearance for Kamp and immediately filed motions for discovery and inspection. Scruggs also filed a motion to continu e the jury trial and a motion to produce a Home Study that related to H.C. Scruggs represented Kamp at a

“ Rule to Show Cause Why Pulaski County Child Protective Services Directors Should not be held in Contempt for Failing to Produce a Home Study ,” and ne gotiated with the
State two plea agreements on Kamp’s behalf which, apparently, were far more favorable to Kamp than a conviction but were rejected by the trial court. Appellant’s App. p. 3

- 4. Scruggs conducted voir dire with the theme that while admi tting that Kamp’s penis was in H.C.’s hand , the State would not be able to establish any proof of intent to arouse the sexual desire of anyone involved. Tr. p. 60

- 63, 81

- 82, 93

- 98, 125

- 26, 132. As noted above, Scruggs commented in his opening statement t hat there would be no dispute that Kam

p’s penis was briefly in H.C.’s ha nd while she was in her bed. Id. at 171

- 72 . However, Scruggs further contended that the evidence at trial would show that19

the touching was not sexual and merely accidental because H. C. grabbed Kamp’s penis when he attempted to wake her from a bad dream. Id. at 171. Scruggs stated that the evidence would show that H.C. was confused about the events as was evident from her admission that she was dreaming and her confusion about what K amp was wearing and how long the event lasted. Id. at 171

- 73 ; 219

- 20. Scruggs also cross

- examined H.C. , and she contradicted herself at times about the timing of the events. Moreover, Scruggs was able to establish that H.C. was dreaming about Ingram when the incident occurred and that Kamp was wearing floor length pajama pants, which was inconsistent with H.C.’s mother’s testimony. Id. at 219. Scruggs cro ss - examined the police officers and sought to exclude the admission of H.C.’s videotaped statement. Scruggs argued and cited case law in an attempt to prevent the jurors from reviewing Kamp ’s videotaped statement

. Scruggs also established that Kamp’s penis was not erect at the time of the incident and that he cooperated with the investigation and never requested counsel to represent him. Id. at 264

- 65.
In light of the above, it is apparent that Scruggs established Kamp’s defense by presenting evidence at trial that the touching was only brief and nonsexual in nature. That said, Hanson, Doran, and Bla ckman merely speculate that a different defense strategy may have been more successful than the one Scruggs invoked. In other words, none of these witnesses could suggest a defense or strategy other than the one that Scruggs presented that would have guar antee d success.20

The record also shows that Scruggs presented closing argument s and argued final instructions. During closing argument, Scruggs maintained that there was no evidence that the touching occurred because of a sexual desire , and nothing more than a n accidental and brief touching had occurred . Scruggs also pointed out that Kamp had been honest with the police , while H.C. had been confused and inconsistent. Tr. p. 293

- 302.
F ollowing the jury’s verdict, Scruggs requested that Kamp’s bond be con tinued pending sentencing . Scruggs also submitted a sentencing memorandum, argued on Kamp’s behalf at the sentencing hearing, and moved for a mistrial. Tr. p. 343

- 63. When examining these circumstances, Kamp has failed to show that Scruggs was “effect ively unavailable” to assist him. Appellant’s Br. p. 18. In other words, Kamp has fallen far short of establishing that Scruggs failed to subject the State’s case to meaningful adversarial testing. Therefore, the Cronic presumption of prejudice does not apply in these circumstances. We also point out that Kamp’s claim of ineffective
assistance of trial counsel fails under Strickland

. In addition to the above claims, Kamp asserts that Scruggs was ineffective for failing to locate a Home Study from Cass County that was admitted as an exhibit at the post

- conviction hearing. However, the record shows that Scruggs filed a motion for discovery and inspection on June 9, 2005 , and subsequently sent a letter to the State requesting the Home Study on August 18 , 2005. Ex. 8. After filing the motion to produce, the trial court set the matter for a c ontempt hearing as to whether the Director of21

the Pulaski county Child Protective Services should not be held in contempt for failing to produce the Home Report.
T he record indicate s that Scruggs did not locate the Home Study because it was conducted in Cass County rather than in Pulaski County. Thus, the rule to show cause hearing was dismissed. M oreover, we note that the report that was finally discovered contai ns an unsubstantiated claim that H.C. had shower ed with her father or step

- mother. And the H ome Study makes no reference or claim of sexual molestation of H.C. in Kamp’s case. The record suggests that discussion of a Home Study occurred between Scruggs and Kamp, but the source of the report was represented to be Pulaski County. Under these circumstances, it is apparent that Scruggs did all that a competent counsel is expected to do to attempt and locate the relevant report. See Rondon v. State , 711 N.E .2d 506, 518 (Ind. 1999) (holding that counsel was not ineffective for failing to uncover evidence beyond that provided by the State in discovery). Additionally, nothing in the report that was presented indicated any relevance to the claims between Kamp a nd the H.C., and Kamp has failed to show how th e information contained in the report would have changed the result of the trial. Kamp also has not shown what an investigation of
any alleged prior abuse would have revealed that might have been admissible a t trial. As a result, Kamp has failed to establish deficient performance on this issue. In a related argument, Kamp appears to be claiming that Scruggs was ineffective for failing to investigate prior sexual abuse that allegedly occurred in the home.22

However, Kamp does not specify who was involved in the alleged prior abuse , and he has

not established what an investigation of thi s alleged prior abuse would have shown or demonstrated . Moreover, Kamp has not shown what, if any evidence that might have b een produced, would have been admissible at Kamp’s trial. Even more compelling, Kamp has failed to show that Scruggs , in fact, did not investigate the alleged prior abuse. Indeed, Doran, who produced Scruggs’s file at the post

- conviction hearing , acknowl edged that it was probably not the entire file

. Doran also admitted that she could not testify that every document relating to Scruggs’s work was included in the materials that were offered to the post

- conviction court. Tr. p. 47. In light of these circ umstances, Kamp has failed to prove (a) that counsel failed to investigate this issue and (b) that an investigation would have produced admissible evidence that would have had a reasonable probability of affecting the outcome of this case. Given these c ircumstances, it cannot be said that the evidence as a whole leads unerringly and unmistakably to a conclusion that is opposite of that reached by the post

conviction court. Even though there was testimony that Scruggs may not have performed in accordance with his usual skill and competence at Kamp’s trial, Scruggs’s actions were reasonable under the prevailing professional norms. Strickland , 466 U.S. at 688. In other words, Kamp has failed to convince us that there was “no way” within the bounds of the law that the post

- conviction court “ could have reached the decision that it did.” Stevens , 770 N.E.2d at 745. Thus, we affirm the denial of Kamp’s petition for post

- conviction relief.23

The judgment of the post

- conviction court is affirmed. DARDEN, J., a nd BAILEY, J., concur.