Court of Appeals of Indiana | Memorandum Decision 84A05-1711-PC-2808 | August 22, 2018 Page 1 of 7

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

Robert Eric Posey

New Castle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Eric Posey,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

August 22, 2018

Court of Appeals Case No.

84A05-1711-PC-2808

Appeal from the Vigo Superior 

Court

The Honorable Michael R. Rader, 

Judge

Trial Court Cause No.

84D05-1412-PC-3168

Baker, Judge.
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[1] Robert Posey appeals the denial of his petition for post-conviction relief, 

arguing that the post-conviction court erroneously determined that he did not 

receive the ineffective assistance of trial counsel. Finding no error, we affirm.

Facts

[2] The underlying facts of this case, as recounted by this Court in Posey’s direct 

appeal, are as follows:

At the time relevant to this appeal, Posey attended a church in

Terre Haute, Indiana, and drove parishioners to and from church 

using a van owned by the church. On June 17, 2009, Posey 

drove thirteen-year-old K.F. and her family to and from the 

church. On the drive home, Posey told K.F. that there was an 

activity planned for teens at the church the following day and 

that she should call him if she wanted to attend. The following 

day, K.F. obtained her father’s permission to attend the church 

event and called Posey to ask for a ride to the church. 

. . . Posey drove his personal vehicle to K.F.’s house to pick her 

up. When K.F. got in Posey’s vehicle, he did not take her to the 

church, but instead drove her to a horse stable. When K.F. asked 

why Posey had not driven to the church, he explained that he 

needed to pick up some items from his home. Posey then drove 

to his home. When Posey went inside, K.F stood at the door to 

wait for him. Posey then invited K.F. inside while he obtained 

the items he needed. Posey told K.F. to sit on the couch and 

play a video game while he was busy. Posey soon joined K.F. on 

the couch and showed her how to play the video game. As he 

did, he put his arm around the girl and began to kiss her. Posey 

then pulled K.F. close to him and took her into his bedroom. 

In the bedroom, K.F. attempted to run away, but tripped and fell 

onto the bed. Posey got on top of K.F. and removed his and 
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K.F.’s clothing. Posey then briefly left the bedroom and went 

down the hallway to retrieve something, which K.F. thought was 

a condom. When he returned to the bedroom, he stopped K.F. 

from putting her clothes back on and began kissing her on her 

body, including her breasts and genital area. Posey then put a 

condom on and had sexual intercourse with K.F. while she 

physically resisted him. When Posey was finished, he gave K.F. 

a towel and told her to clean herself. K.F., who was in pain and 

bleeding from her vagina, ran into the bathroom and put her 

clothes back on. Posey then drove K.F. back home and told her 

not to tell anyone about what he had done to her. 

When K.F. got home, she took a bath, placed her clothes in the 

washer, and fell asleep. K.F. eventually told one of her friends 

what had happened, and that friend telephoned K.F.’s father and 

told him that he needed to speak with K.F. When her father 

questioned her, K.F. told him what had happened. K.F.’s father 

then consulted his parents and his ex-wife, K.F.’s mother. At 

one point, Posey called K.F.’s father and asked him not to bring 

criminal charges. The following morning, K.F.’s father took her 

to the hospital. After speaking with K.F. and her father, a nurse 

at the hospital contacted the police. The police then spoke with 

K.F. and her father and collected K.F.’s clothing. After 

obtaining a warrant to search Posey’s home, the police took a 

towel, the bed sheets, and a comforter from Posey’s home. The 

police also obtained blood samples from both K.F. and Posey.

Posey v. State, No. 84A01-1103-CR-97, at *1 (Ind. Ct. App. Dec. 13, 2011). The 

State charged Posey with Class A felony child molesting; on December 2, 2010, 

a jury found Posey guilty as charged. The trial court subsequently sentenced 

Posey to thirty-five years imprisonment. Posey brought a direct appeal, arguing 

that the trial court erred in admitting certain evidence and in denying Posey’s 

motion for a mistrial. This Court affirmed. Id. at *5.
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[3] On December 17, 2014, Posey filed a petition for post-conviction relief. He 

later amended the petition, arguing that he received the ineffective assistance of 

trial counsel. The post-conviction court held an evidentiary hearing on Posey’s 

petition on August 8, 2017. On November 6, 2017, the post-conviction court 

denied Posey’s petition. Posey now appeals.

Discussion and Decision

[4] The general rules regarding the review of a ruling on a petition for postconviction relief are well established:

“The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence.” 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. To prevail on appeal from the denial of postconviction relief, a petitioner must show that the evidence as a 

whole leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. Weatherford v. 

State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the postconviction court in this case made findings of fact and 

conclusions of law in accordance with Indiana Post–Conviction 

Rule 1(6). Although we do not defer to the post-conviction 

court’s legal conclusions, “[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.” Ben-Yisrayl v. State, 729 N.E.2d 

102, 106 (Ind. 2000) (quotation omitted).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
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[5] Posey’s sole argument on appeal is that his trial counsel was ineffective, though 

he raises multiple reasons for the alleged ineffectiveness. A claim of ineffective 

assistance of trial counsel requires a showing that: (1) counsel’s performance 

was deficient by falling below an objective standard of reasonableness based on 

prevailing professional norms; and (2) counsel’s performance prejudiced the 

defendant such that “‘there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.’”

Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v. 

Washington, 466 U.S. 668, 687 (1984)). “A reasonable probability arises when 

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

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 

U.S. at 694). “Failure to satisfy either of the two prongs will cause the claim to 

fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012).

[6] Posey’s primary allegation of ineffectiveness centers around an argument that 

trial counsel failed to investigate the chain of custody for the physical items that 

were collected and used to obtain DNA evidence. At the post-conviction 

hearing, trial counsel testified that although after seven years, he could no 

longer recall the specifics of his work on Posey’s case, he did conduct an 

investigation in this case. Tr. Vol. II p. 13, 15-16, 18-20. Furthermore, counsel 

testified that he always investigates the chain of custody of evidence and that he 

found no cause for objecting to chain of custody here. Id. Additionally, the 

testimony of one of the crime scene investigators at the post-conviction hearing 

refutes any claim that there was an improper chain of custody or any tampering 
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with the physical evidence collected in this case. Id. at 52-73. Given this 

record, we find that the post-conviction court did not err by determining that 

Posey did not meet his burden of showing that counsel’s performance fell below 

an objective standard of reasonableness.

[7] Furthermore, K.F., the victim, testified at Posey’s trial. Her testimony, alone, 

would have been sufficient to support Posey’s conviction. E.g., Greenboam v. 

State, 766 N.E.2d 1247, 1257 (Ind. Ct. App. 2002) (noting that a “victim’s 

testimony, even if uncorroborated, is ordinarily sufficient to sustain a 

conviction for child molesting”). As such, Posey cannot show that he was 

prejudiced by anything related to the DNA evidence linking him to the crime. 

Therefore, the post-conviction court did not err by finding that Posey did not 

receive the ineffective assistance of trial counsel.

[8] Posey’s remaining arguments, to the extent we are able to discern what they 

are, appear to be as follows: (1) counsel colluded with the prosecution and the 

police in manufacturing evidence; (2) counsel should have realized that certain 

witnesses in this case manufactured DNA evidence or committed perjury; and 

(3) counsel should have called the physician who performed the victim’s pelvic 

exam to testify. With respect to the first two assertions, there is no evidence 

whatsoever that remotely tends to support these claims. With respect to the 

third, Posey did not call the physician as a witness at the post-conviction 

hearing, so we have no way of knowing what the content of the testimony 

would have been. Therefore, the post-conviction court did not err by finding 
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that Posey did not receive the ineffective assistance of trial counsel for any of 

these reasons.1

[9] The judgment of the post-conviction court is affirmed.

May, J., and Robb, J., concur.

 

1

Posey also attempts to raise a claim that fundamental error occurred in his trial, but this claim is not 

available in a post-conviction proceeding. Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 2008). Posey 

also references the use of an alleged evidentiary harpoon by the prosecutor, but this claim was argued and 

decided adversely to Posey in his direct appeal. Posey, at *2-3. Therefore, the issue is not available for review 

in this proceeding.