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.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS GREGORY F. ZOELLER

Public Defender of Indiana Attorney General of Indiana 

LINDA K. HUGHES MONIKA PREKOPA TALBOT

Deputy Public Defender Deputy Attorney General 

Indianapolis, Indiana Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

RICK DELKS, )

)

Appellant-Petitioner, )

)

vs. ) No. 84A01-1309-PC-416

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE VIGO SUPERIOR COURT

The Honorable John T. Roach, Judge

Cause No. 84D01-1012-PC-4031

May 15, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge
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Case Summary and Issue

Rick Delks appeals the post-conviction court’s denial of his petition for postconviction relief, raising the following issue for our review: whether Delks received 

ineffective assistance of trial counsel. Concluding the post-conviction court’s denial of 

Delks’s petition was not erroneous, we affirm.

Facts and Procedural History

Between December 2007 and January 2008, Delks babysat K.B. and her younger 

brother at Delks’s home on a number of occasions. At that time, K.B was five years old. 

In January 2008, Shelly Green, a friend of K.B.’s mother, noticed that K.B. acted 

strangely around Delks and did not wish to be around him. After speaking with K.B. and 

her mother, Green went to the police and filed a report that Delks had molested K.B. On 

January 29, 2008, K.B. was taken to an advocacy center where she was interviewed 

regarding the alleged molestation, and that interview was videotaped. 

On February 12, 2008, Delks was charged with one count of child molesting, a 

Class A felony. A two-day jury trial took place on May 5-6, 2009. K.B. was the only 

eyewitness to Delks’s molestation and was consequently the State’s star witness at trial. 

When called to testify, K.B. demonstrated that she understood the difference between the 

truth and a lie and that she was required to tell the truth in court. K.B. testified that while 

Delks was babysitting her, he inserted his finger inside her vagina while they were on the 

couch in the living room. She also testified that she and Delks watched “bad movies” 

that were pornographic in nature. Trial Transcript at 74.

After K.B.’s testimony, the State moved to admit the videotape of the interview of 

K.B. conducted by the advocacy center. Delks’s trial counsel objected, arguing that the 
3

videotape was inadmissible because it did not bear sufficient indications of reliability. 

After discussion outside the presence of the jury, the trial court ruled that the videotape 

would be admitted over objection.1 The videotaped interview was then played for the 

jury. The content of K.B.’s videotaped statements was consistent with her trial 

testimony. She said that Delks had put his finger inside her vagina and that the two had 

watched “[d]irty movies” together when Delks babysat her. Trial Tr. at 128. The 

videotape also contained additional statements not made during K.B.’s live testimony, 

including that Delks sucked on K.B.’s “boobies” and made her touch his “pee pee.” Trial 

Tr. at 126, 131. 

The jury found Delks guilty as charged. He was sentenced to thirty years, with 

twenty-five years executed in the Indiana Department of Correction and five suspended 

to be served in community corrections. Delks appealed, and his conviction was affirmed 

by this court in an unpublished memorandum decision. See Delks v. State, 924 N.E.2d 

679 (Ind. Ct. App. 2010).

In October 2010, Delks filed a pro se petition for post-conviction relief, which was 

later amended after appointment of a public defender. Delks’s petition alleged that he 

received ineffective assistance of trial counsel. An evidentiary hearing was held on June 

12, 2013. On August 30, 2013, the post-conviction court denied Delks’s petition. This 

appeal followed. 

 

1

 K.B.’s videotaped statement was admitted pursuant to Indiana Code section 35-37-4-6, also known as the 

Protected Person Statute. 
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Discussion and Decision

I. Standard of Review

A petitioner seeking post-conviction relief bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). 

A petitioner who is denied post-conviction relief appeals from a negative judgment, 

which may be reversed only if “the evidence as a whole leads unerringly and 

unmistakably to a decision opposite that reached by the post-conviction court.” Stevens 

v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). We defer to 

the post-conviction court’s factual findings, unless they are clearly erroneous. Id. at 746.

The Sixth Amendment’s “right to counsel is the right to the effective assistance of 

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. 

Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective 

assistance of counsel, a convicted defendant must show (1) that counsel’s performance 

was deficient such that it fell below an objective standard of reasonableness based on 

prevailing professional norms and (2) the defendant was prejudiced by counsel’s 

deficient performance. Id. at 687. When considering whether counsel’s performance 

was deficient, the reviewing court begins with a “strong presumption” that counsel’s 

performance was reasonable. Id. at 689. A defendant is prejudiced if “there is a 

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

proceeding would have been different.” Id. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.

The two prongs of the Strickland test—performance and prejudice—are 

independent inquiries, and both prongs need not be addressed if the defendant makes an 
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insufficient showing as to one of them. Id. at 697. For instance, “[i]f it is easier to 

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that 

course should be followed” without consideration of whether counsel’s performance was 

deficient. Id.

II. Ineffective Assistance of Counsel

Delks claims that he received ineffective assistance of counsel. Specifically, 

Delks maintains that his counsel’s objection to K.B.’s videotaped statement should have 

focused on an Indiana Supreme Court decision, Tyler v. State, 903 N.E.2d 463 (Ind. 

2009), that was decided approximately one month before Delks’s trial. As Delks points 

out, the court in Tyler held that if a protected person’s prerecorded statement and live 

testimony are both consistent and are otherwise admissible, testimony of the protected 

person may be presented at trial by live testimony or through the prerecorded statement, 

but not both. Id. at 467.

A discussion of trial counsel’s performance is unnecessary, because we conclude 

Delks has not shown prejudice resulting from his counsel’s failure to cite Tyler in his 

objection. K.B.’s videotaped statement was largely cumulative of her live testimony at 

trial, and there is no dispute that K.B.’s live testimony was sufficient to satisfy each 

element of the charge of child molesting. 

Delks relies on a statement in Tyler that admission of both a child’s live testimony 

and videotaped statements “can be unfairly prejudicial.” Id. However, we recognize the 

actual holding in Tyler was that the admission of both live testimony and recorded 

statements was not reversible error, where the recorded statements were consistent with 

live testimony. Id. That holding was based in part upon the court’s acknowledgment of 
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deference to the trial court’s discretion in assessing prejudicial impact. Id. at 467 n.4. 

The post-conviction court in this case noted the holding in Tyler and similarly concluded 

that the admission of K.B.’s videotaped statement was not unduly prejudicial. We cannot 

say the post-conviction court erred when it concluded Delks was not prejudiced by his 

trial counsel’s alleged deficiency. 

Conclusion

Concluding the post-conviction court did not err by denying Delks’s petition for 

post-conviction relief, we affirm.

Affirmed.

RILEY, J., and BRADFORD, J., concur.