Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 1 of 18

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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Lloyd E. Sally

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin 

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James E. McGee,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

July 24, 2015

Court of Appeals Case No.

45A03-1411-PC-397

Appeal from the Lake Superior 

Court

Cause Nos. 45G02-1206-PC-8, 

45G02-0907-FA-29

The Honorable Kathleen A. 

Sullivan, Magistrate

The Honorable Clarence D. Murray, 

Judge

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 2 of 18

Case Summary

[1] James E. McGee (“McGee”) appeals the denial of his petition for postconviction relief, which challenged his convictions for Child Molesting.1

 We 

reverse and remand for retrial.

Issue

[2] McGee presents the issue whether he was denied the effective assistance of trial 

counsel because counsel failed: 

(a) to present evidence or make an offer of proof as to a prior false 

molestation accusation and the delusional symptoms of the complaining 

witness; or

(b) to object to voluminous instances of bolstering testimony and evidence of 

uncharged misconduct in another jurisdiction. 

Facts and Procedural History

[3] The facts underlying McGee’s conviction were recited by a panel of this Court 

on direct appeal:

McGee was an Illinois police officer who lived in Indiana. B.D., a 

minor, is the daughter of McGee’s cousin, Laquita Hughes. B.D. and 

her family lived in Harvey, Illinois, and McGee would often stop by 

 

1

Ind. Code § 35-42-4-3.
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 3 of 18

their house. B.D. would also frequently visit McGee’s house in 

Indiana, as McGee’s daughter is approximately the same age as B.D.

B.D. testified that, on one of these visits to Indiana when she was nine 

years old, she was sleeping on the couch and McGee “came and set 

[sic] at the end of my feet and he started rubbing in between my legs.” 

Tr. 103. She further testified that McGee put his hands “on my 

vagina” and “rubbed it” for about two minutes. Tr. 104-105. On 

another visit, when she was twelve, B.D. was riding with McGee and 

her younger brother in McGee’s van. McGee dropped B.D.’s younger 

brother off at the Boys and Girls Club for a basketball tournament, and

then pulled his van into a vacant lot. B.D. testified that, in the lot, 

McGee forced B.D. to have vaginal sex with him. B.D. recounted that 

on another occasion, also in McGee’s van, McGee forced B.D. to 

“suck on him.” On another visit, according to B.D., McGee made 

B.D. play with his penis, and he ejaculated on the steering wheel.

On July 30, 2009, the State charged McGee with two counts of child 

molesting as a Class A felony, and one count as a Class C felony. A 

jury trial was held, and, on March 19, 2010, the jury found McGee 

guilty on all three charges. Because of double jeopardy concerns, the 

trial court entered a judgment of conviction only as to Counts I and II, 

and sentenced McGee to forty years imprisonment for each Class A 

felony count, to be served concurrently.

McGee v. State, No. 45A04-1007-CR-413, slip op. at 1 (Ind. Ct. App. Feb. 11, 

2011), trans. denied. On direct appeal, McGee challenged the sufficiency of the 

evidence to support his convictions, alleged fundamental error in jury 

instruction and trial court bias, and claimed that his sentence was inappropriate. 

His convictions and sentence were affirmed. Id. at 6.

[4] On June 26, 2012, McGee filed a pro-se petition for post-conviction relief. 

With the assistance of the Indiana Public Defender, McGee filed an amended 

petition for post-conviction relief alleging ineffectiveness of trial counsel. Postconviction hearings were conducted on April 16 and 17, 2013. On October 23, 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 4 of 18

2014, the post-conviction court issued its findings of fact, conclusions, and 

order denying McGee post-conviction relief. This appeal ensued.

Discussion and Decision

Standard of Review

[5] The petitioner in a post-conviction proceeding 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 unmistakably leads to a conclusion opposite that reached by the 

post-conviction court. Id. A post-conviction court’s findings and judgment will 

be reversed only upon a showing of clear error, that which leaves us with a 

definite and firm conviction that a mistake has been made. Id. In this 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.

Effectiveness of Trial Counsel

[6] Effectiveness of counsel is a mixed question of law and fact. Strickland v. 

Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims 

of ineffective assistance under the two-part test announced in Strickland. Id. To 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 5 of 18

prevail on an ineffective assistance of counsel claim, a defendant must 

demonstrate both deficient performance and resulting prejudice. Dobbins v. 

State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687). 

Deficient performance is that which falls below an objective standard of 

reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 

1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that 

“there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind. 

1996). The two prongs of the Strickland test are separate and independent 

inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice ... that course 

should be followed.” Id.

[7] We “strongly presume” that counsel provided adequate assistance and 

exercised reasonable professional judgment in all significant decisions. McCary 

v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded 

considerable discretion in the choice of strategy and tactics. 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 requiring 

reasonable professional judgment even if the strategy in hindsight did not serve 

the defendant’s interests. Id. In sum, trial strategy is not subject to attack 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 6 of 18

through an ineffective assistance of counsel claim, unless the strategy is so 

deficient or unreasonable as to fall outside the objective standard of 

reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).

[8] McGee claims that his trial counsel was ineffective because he did not 

effectively challenge the complaining witness’s credibility or preserve 

appropriate issues for appellate review. More specifically, although trial 

counsel knew that B.D.’s father had claimed she had a propensity to lie and had 

identified a prior molestation accusation that he considered to be false, trial 

counsel did not develop a corresponding defense. He did not depose B.D.’s 

father or provide notice of intent, pursuant to Indiana Evidence Rule 412, to 

present evidence of a prior false accusation. Although counsel knew that B.D.’s 

accusation against McGee had been made during her hospitalization at a 

psychiatric facility, counsel did not present evidence that B.D. had, at that time, 

been diagnosed as suffering from a non-specific psychosis. Nor did counsel 

present evidence that B.D. had insisted to her family and the hospital staff that 

she was pregnant despite medical evidence to the contrary, while showing 

another patient’s ultrasound photograph as her own. Finally, counsel made no 

objection as B.D., her family members, a welfare caseworker, and law 

enforcement personnel testified at length regarding uncharged misconduct 

allegedly committed by McGee.

[9] Trial counsel John Cantrell (“Cantrell”) testified at the post-conviction hearing, 

identifying the theory of defense as an attack upon B.D.’s credibility. In 

particular, Cantrell believed that he had held “a smoking gun” because B.D. 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 7 of 18

had reported that McGee had a mole on his penis and no such mole was visible 

in the State’s photographic exhibits. (P.C.R. Tr. at 22.) In light of the physical 

evidence contradicting B.D.’s description, counsel did not pursue other 

evidentiary avenues. 

[10] Cantrell asserted that he “would not violate motions in limine” and “could not 

substantiate” a prior false accusation of molestation. (P.C.R. Tr. at 30, 33.) He 

claimed that it had been a strategic decision to “allow all evidence of uncharged 

allegations from Illinois into the record” because it was preferable to “attack 

everything with inconsistent stories ... than just one in East Chicago [Indiana].” 

(P.C.R. Tr. at 56, 64.) At the same time, he intended to “not allow bolstering if 

he could keep it out.” (P.C.R. Tr. at 49.) As for investigating the substance of 

the testimony as to uncharged misconduct, Cantrell conceded that he had not 

deposed B.D.’s family members but “thought” he had spoken to B.D.’s father 

“in the hall.” (P.C.R. Tr. at 70.) 

[11] With regard to B.D.’s delusional pregnancy, Cantrell explained that the trial 

court had accused him of attempting to circumvent rape shield law. He 

appeared to be convinced that he could not challenge a ruling in limine, 

insisting impeachment was to be conducted “within the court’s motion [sic] in 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 8 of 18

limine” and he could not “touch” its scope on cross-examination. (P.C.R. Tr. 

at 83.)2

[12] Appellate counsel Mark Bates (“Bates”) testified that he had been hindered in 

his presentation of issues for appeal. According to Bates, evidentiary issues had 

not been preserved for review by timely objections or offers of proof in the trial 

court. Bates testified that he could discern no strategic reason for the admission 

of uncharged misconduct in Illinois, in light of Indiana Evidence Rule 404(b). 

[13] In denying McGee post-conviction relief, the post-conviction court concluded 

that Cantrell had “valiantly sought” to admit the purported prior false 

allegation of molestation and could not be found ineffective “simply because 

the court ruled against his position.” (App. 89.) The post-conviction court also 

concluded that trial counsel’s failure to make an offer of proof with regard to 

B.D.’s medical records was not prejudicial, in that the records included no 

specific diagnosis of a delusional disorder. With regard to uncharged 

misconduct, the post-conviction court stated in relevant part:

Cantrell testified that he believed the best defense was to question B.D. 

regarding the prior bad acts. Cantrell testified that B.D.’s story was 

unbelievable especially since B.D. claimed the molesting happened so 

many times, with so many people in close proximity, yet never 

resulted in a police investigation. Cantrell stated that it was more 

plausible for a jury to believe a two time event where the victim 

 

2 We observe that the trial court specifically advised counsel to the contrary. At the pre-trial hearing 

addressing motions in limine, the trial court clarified: “Obviously these are Motions in Limine. All these 

issues are going to be revisited during the trial, and I may change my ruling. These are preliminary rulings as 

we all know.” (Tr. at 30.) 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 9 of 18

recounted specific details, rather than numerous events which basically 

lead to nothing. The strategy was to highlight all of the occasions to 

show the jury how implausible the story was, and to categorize B.D. as 

a liar. This Court should not and will not second guess counsel’s 

strategy and tactics.

(App. 88.)

Prior Accusation of Sexual Misconduct

[14] Prior to trial, Cantrell was provided with a statement B.D.’s father had made to 

Detective Edward Rodriquez of the East Chicago Police Department. The 

statement included references to a prior accusation by B.D.:

The reason why we didn’t make out a report [in this case] was because 

basically [B.D.] she’s known to lie a lot, so we kind of didn’t go into 

the motions of it, and because we used to have a handy man around 

the house. She accused him of touching her. She came and told that 

incident, she said that he touched her. He came down and she came 

down and he said you can call the police because I never touched your 

daughter. This was the handy man saying this, his name is Ollie, I 

don’t know his last name. So [B.D.] admitted that he never touched 

her.

(P.C.R. Exhibit 3.) McGee now argues that Cantrell should have presented 

evidence of the prior accusation after requesting a hearing to demonstrate that 

the prior accusation was admissible as an exception to Indiana’s rape shield 

evidentiary exclusions. In turn, the State argues that McGee has failed – even 

after a post-conviction hearing at which evidence was presented – to show that 

a demonstrably false prior accusation was made.

[15] Indiana Evidence Rule 412, the Rape Shield Rule, incorporates the basic 

principles of Indiana Code § 35-37-4-4 and reflects a policy that inquiry into a 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 10 of 18

victim’s prior sexual activity should not become a focus of the defense. State v. 

Walton, 715 N.E.2d 824, 826 (Ind. 1999). Rule 412 is designed to preclude 

evidence of a complaining witness’s prior sexual conduct; however, evidence of 

prior false accusations of rape made by a complaining witness does not 

constitute “prior sexual conduct” for rape shield purposes. Id. False 

accusations constitute verbal conduct, not sexual conduct. Id. Thus, a 

defendant may offer evidence of prior false accusations of rape to impeach the 

credibility of a witness without running afoul of the Rape Shield Rule. Id. at 

827.

[16] Evidence of prior false accusations of rape or sexual misconduct may be 

admitted if (1) the complaining witness admits he or she made a prior false 

accusation; or (2) the prior accusation is demonstrably false. Hall v. State, No. 

49S05-1412-CR728, slip op. at 12, n.10 (Ind. 2015). In Hall, the complaining 

witness had, according to her mother’s report in a recorded telephone 

conversation, falsely accused a boy in another state of sexual misconduct. 

Nonetheless, when the mother was deposed by defense counsel, she refused to 

discuss the incident in detail; the trial court refused to compel her cooperation.

[17] A panel of this Court reversed Hall’s conviction, concluding that the trial court 

abused its discretion when it denied Hall’s motion to compel the complaining 

witness’s mother to answer the deposition question regarding a prior false 

accusation of sexual misconduct. Hall v. State, 15 N.E.3d 1107, 1121 (Ind. Ct. 

App. 2014). On transfer, our Indiana Supreme Court ultimately concluded that 

the discovery ruling was harmless error. In reaching this conclusion, however, 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 11 of 18

the Court observed that the mother’s response could have revealed potentially 

relevant information and stated that “the trial court should have granted Hall’s 

motion to compel discovery in order to fully secure his Sixth Amendment right 

to confront witnesses against him. Hall, slip op. at 12-13.

[18] Like the defendant in Hall, McGee would have been entitled to explicit 

exploration of the circumstances surrounding B.D.’s complaint to her parent of 

prior sexual misconduct, which the parent rejected as false. We would expect 

reasonably competent counsel to pursue this avenue. It may be that the identity 

of the accused could have been revealed from clues known to B.D.’s father; it 

may be that the accusation could have been shown to be demonstrably false. 

However, as the State points out, the accusation has not been disproved and 

thus we cannot ascertain whether McGee was prejudiced by his trial counsel’s 

omission. B.D.’s father did not testify at the post-conviction hearing and no 

other evidentiary record was developed to shed light upon whether the prior 

accusation was indeed false. We cannot reach a conclusion of ineffectiveness of 

counsel based upon speculation.

Psychiatric Records

[19] In May of 2009, B.D. was admitted to a psychiatric facility, Hartgrove Hospital. 

The intake assessment included reports from B.D.’s guardian, Laquita Hughes, 

that B.D. was suicidal, a chronic runaway, reportedly pregnant, and “saying the 

baby was moving in her stomach.” (App. 186.) B.D. was preliminarily 

diagnosed with an unspecified psychosis. After testing revealed that B.D. was 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 12 of 18

not pregnant, she continued to insist that she was pregnant, even displaying an 

ultrasound photograph apparently stolen from another patient. After B.D. was 

treated for major depression, Hughes expressed concern to hospital staff that 

B.D. was “still delusional and not ready to be discharged.” (App. 274.) McGee

argues that B.D. was delusional at the time she accused McGee of sexual 

misconduct, presenting a significant challenge to her credibility that Cantrell

failed to develop. The State argues that McGee was not prejudiced because the 

impeachment value of the records was minimal; B.D. had not received a 

specific diagnosis of a delusional disorder.

[20] In a pretrial hearing, the State opposed the admission of B.D.’s psychiatric 

records, contending that references to pregnancy ran afoul of the Rape Shield 

Rule. Cantrell responded that the pregnancy references were not evidence of 

past sexual conduct because B.D. was not in fact pregnant; rather, she was 

delusional. The trial court agreed with the State, advising defense counsel: 

“We’ll cross that bridge when we get to it, counsel. She hasn’t taken the stand 

yet, so I don’t know what you will be able to impeach her on.” (Tr. at 15.) 

After the close of the State’s case-in-chief, defense counsel again argued for 

admission of B.D.’s redacted psychiatric records. The trial court excluded the 

records and defense counsel withdrew the proffered exhibits without making an 

offer of proof. 

[21] A history of mental problems “at the time of the incidents so that [a witness’s] 

ability to recall the facts they were testifying about might be questionable” may 

be admissible for impeachment purposes. Witte v. State, 516 N.E.2d 2, 5 (Ind. 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 13 of 18

1987). However, counsel will not be found ineffective for failure to impeach by 

means of psychiatric records that are only “marginally relevant.” Wesley v. 

State, 788 N.E.2d 1247, 1252 (Ind. 2003).

[22] Here, we conclude that the records have greater than marginal relevance. At 

the time B.D. reported McGee’s conduct, she was hospitalized and suffering 

from depression. Her preliminary diagnosis was that of non-specific psychosis. 

Although the diagnosis did not specifically reference a delusional disorder, her 

intake assessment indicated significant symptomology that would likely cause a 

reasonable factfinder to reflect upon B.D.’s perception of reality. After a 

negative pregnancy test and psychiatric treatment, B.D. continued to insist that 

she was pregnant. In a documented pregnancy “fixation,” B.D. presented 

another patient’s ultrasound as evidence of her own pregnancy. (App. at 249.)

[23] We recognize that defense counsel attempted to introduce redacted psychiatric 

records and encountered opposition with regard to whether admission would 

violate the Rape Shield Rule. Like false accusations of sexual misconduct, false 

reports of pregnancy concern verbal conduct. Disproving a claim of pregnancy 

does not introduce evidence of the complaining witness’s past sexual behavior. 

Nonetheless, defense counsel could not have compelled the trial court to reach 

this conclusion at trial. However, he fell short of reasonable professional norms 

when he failed to make an offer of proof and preserve the issue for appellate 

review. Given the severity of B.D.’s symptoms, the timing of her allegations 

against McGee, and the inconsistencies in her statements to medical personnel, 

McGee was denied the opportunity to present a significant challenge to B.D.’s 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 14 of 18

credibility. This issue could have been presented on direct appeal given an offer 

of proof. The omission was prejudicial.

Evidence of Uncharged Misconduct

[24] McGee was charged with molesting B.D. in the State of Indiana. At McGee’s 

trial, B.D., each of her parents, and her sister Camesha Dowell (“Dowell”) 

testified to uncharged events occurring in the State of Illinois. Defense counsel 

did not object to the testimony, purportedly preferring to defend against all 

accusations from any source as opposed to those alleged in the charging 

informations.

[25] The admission of evidence of uncharged bad conduct is constrained by Indiana 

Rule of Evidence 404(b), which provides in relevant part as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. 

It may, however, be admissible for other purposes, such as proof of 

motive, intent, preparation, plan, knowledge, identity or absence of 

mistake or accident.

[26] Evidence of extrinsic offenses poses the danger that the jury will convict the 

defendant because he is a person of bad character generally, or has a tendency 

to commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). The 

rationale for the prohibition against bad act and character evidence is 

“predicated upon our fundamental precept that every defendant should only be 

required to defend against the specific charges filed.” Oldham v. State, 779 

N.E.2d 1162, 1173 (Ind. Ct. App. 2002), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 15 of 18

[27] B.D. testified that McGee came to her Illinois home “just about every day” and 

would – at that home – touch her breasts and vagina. (Tr. at 102.) More 

specifically, B.D. testified:

He comes to my house in Illinois to visit me, and not just to visit me, it 

was like every day just about every day thing, so every time he sees 

me, he either rub over my clothes or outside my clothes, or he put his 

finger in my vagina or he rubs it or something.

(Tr. at 107). B.D. also stated that McGee “was licking on my vagina ... in my 

house in the living room [in Harvey, Illinois].” (Tr. at 113.) In corroboration, 

Dowell testified to seeing something “questionable” in Illinois when she came 

downstairs and saw B.D. “jump and move” but then both McGee and B.D. 

pretended to be asleep. (Tr. at 174-75.) Both Hughes and Davis testified that 

their daughter, Dowell, had become alarmed and called her mother at work to 

report her suspicions. 

[28] On cross-examination of Dowell, defense counsel elicited clarifying details of 

the feigned sleep event and also established that McGee had access to B.D. in 

the kitchen, because he would ask her for drinks and then follow her. Likewise, 

during cross-examination of Hughes, defense counsel invited her to provide 

clarifying details of the events related to her in Dowell’s telephone call.

[29] In sum, defense counsel elected to acquiesce when multiple witnesses revealed 

uncharged misconduct and then he elicited more detailed descriptions on crossexamination. Moreover, on one occasion, defense counsel initially introduced 

evidence of his client’s uncharged bad act. During cross-examination of B.D., 

the following exchange took place:
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 16 of 18

Defense Counsel: You previously testified that James had handcuffed 

you to your bed and felt all of your body, is that right?

B.D.: Yes.

(Tr. at 132.) The prosecutor then objected that there had been no such prior 

testimony, and defense counsel insisted that he was conducting appropriate 

cross-examination based upon a deposition.3 The trial court sustained the 

prosecutor’s objection; no limiting instruction was requested.

[30] In light of the lengthy and detailed testimony from multiple witnesses regarding 

uncharged events, it is evident that defense counsel stood silently by (and 

occasionally assisted) as the “fundamental precept” that McGee should defend 

against only “the specific charges filed” was violated. Oldham, 779 N.E.2d at 

1173. We find this to be both deficient and prejudicial.

Bolstering Testimony

[31] At the post-conviction hearing, defense counsel testified that his intent was to 

keep out testimony that would improperly bolster B.D.’s credibility. The trial 

record belies his success in this regard. Voluminous corroborative hearsay 

evidence was admitted, without objection from the defense.

[32] Child services investigator Vashona Mack (“Mack”) was invited to read to the 

jury her report of “just the things that [B.D.] tells you and you write down.” 

(Tr. at 374.) The document read to the jury included B.D.’s statements to Mack 

 

3

In a side bar conference, defense counsel indicated that he was “trying to get in the fact that everybody was 

in the house.” (Tr. at 133.)
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 17 of 18

that: McGee had “touched her” from age nine until twelve; McGee exposed 

his penis and B.D. “played” with it; McGee kissed B.D.’s breasts; while B.D. 

slept, McGee would “start feeling on her”; McGee placed his penis on B.D.’s 

face and tried to push her head toward it; McGee ejaculated onto a steering 

wheel; when B.D. was thirteen, McGee “started feeling her” in Illinois; McGee 

handcuffed B.D. to a bed; McGee placed his mouth on B.D.’s vagina; McGee 

would place B.D.’s hands on his penis; and McGee had never “penetrated” 

B.D. or attempted penetration. (Tr. at 375-76.)

[33] As a result of a question propounded by a juror – to which Cantrell failed to 

object – Hughes was asked to describe “what B.D. told her” regarding the 

occurrence near the Boys and Girls Club. In her testimony, B.D. had explained 

that McGee had pulled down her panties and “forced hisself” [sic] on her. (Tr. 

at 108.) Hughes’ recitation of hearsay provided increased detail:

He told her to touch him, and she touched him, and he just told her he 

wanted to put the head in. And she said when he first did it, it hurted 

(sic) and then she said he told her it’s going to ease it, just give it a 

minute, and that’s when they had sex.”

(Tr. at 331.) Again, the acquiescence to bolstering testimony is both deficient 

performance and prejudicial. 

[34] Counsel is to be afforded discretion in matters of strategy and tactics. 

Timberlake, 753 N.E.2d at 603. That said, counsel’s performance must 

ultimately be such that the defendant has not been denied a fair trial. 
Court of Appeals of Indiana | Memorandum Decision 45A03-1411-PC-397 | July 24, 2015 Page 18 of 18

[35] Here, counsel consciously elected to have his client defend against all 

allegations of his misconduct toward B.D., not just those charged in the 

informations. Although he anticipated that evidence of uncharged misconduct 

in Illinois would be introduced into evidence, he did not depose or interview 

family members to ascertain the particulars of their anticipated testimony. He 

did not request a hearing to determine the admissibility of evidence the State 

alleged to be in violation of the Rape Shield Rule. He appeared to 

misapprehend his role as advocate, opining that he could not challenge rulings 

in limine during the trial. He failed to make an offer of proof with respect to 

B.D.’s psychiatric records, although aware that she had appeared delusional 

during her hospitalization. He did not lodge appropriate objections to hearsay 

testimony, no matter how damaging. He elicited testimony from the victim 

regarding an uncharged act of confinement by handcuffing. In light of the 

foregoing, we conclude that McGee has established deficient performance and 

resulting prejudice.

Conclusion

[36] McGee was denied the effective assistance of trial counsel. Accordingly, he is 

entitled to post-conviction relief. We remand for re-trial.

[37] Reversed and remanded. 

Riley, J., and Barnes, J., concur.