BRIAN S. ADCOCK, Appellant-Petitioner,
STATE OF INDIANA, Appellee-Respondent
As Corrected December 9, 2014.
APPEAL FROM THE LAWRENCE SUPERIOR COURT. The Honorable Michael A. Robbins, Judge. Cause No. 47D01-1305-PC-672.
ATTORNEYS FOR APPELLANT: STEPHEN T. OWENS, Public Defender of Indiana, C. BRENT MARTIN, Deputy Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, J.T. WHITEHEAD, Deputy Attorney General, Indianapolis, Indiana.
BARNES, Judge. BRADFORD, J., and BROWN, J., concur.
Brian Adcock appeals the post-conviction court's denial of his petition for post-conviction relief (" PCR petition" ), which challenged his convictions for two counts of Class A felony child molesting and two counts of Class B felony sexual misconduct with a minor. We reverse and remand.
The combined and restated issue before us is whether Adcock's appellate counsel was ineffective for failing to challenge the sufficiency of the evidence against him on
L.P. was born on September 21, 1988. Adcock lived in Bedford with L.P. and her mother, and he married L.P.'s mother when L.P. was twelve. Beginning when L.P. was in third grade, Adcock would come into L.P.'s bedroom at night about once a week and fondle her breasts and try to touch her vagina. Most of these touchings occurred over L.P.'s clothes, although Adcock would sometimes try to reach underneath her clothes.
L.P. began junior high school in the fall of 2001. L.P.'s junior high school included seventh and eighth grades. L.P. turned fourteen in September 2002, at the beginning of her eighth grade year. Sometime during her seventh grade year, Adcock began frequently giving her back rubs, and these would escalate into Adcock fondling L.P.'s breasts and touching her vagina. L.P. would later testify that Adcock usually " rubbed around" her vagina with his fingers, but that " once or twice," he put his finger into her vagina. Tr. p. 453. L.P. also said, " He didn't do that that much." Id. L.P. was unsure what grade she was in when Adcock digitally penetrated her vagina.
Sometime during L.P.'s freshman year of high school, which would have been in 2003-04, Adcock began frequently rubbing his penis against L.P.'s vagina. L.P. specifically would later testify that Adcock " [j]ust rubbed against mine" and that he did not do anything else with his penis. Id. at 448.
L.P. told a friend about Adcock's conduct while she was in junior high school, but it was not reported to police at that time. In 2006, L.P. told a boyfriend about Adcock's conduct, and it was finally investigated by police in January 2008. On May 21, 2008, the State charged Adcock with a number of offenses related to L.P. After several amendments and motions to dismiss, Adcock faced trial on three counts of Class A felony child molesting and three counts of Class B felony sexual misconduct with a minor, all of which alleged that Adcock engaged in " deviate sexual conduct" with L.P. App. pp. 65-66. The three child molesting counts were alleged to have occurred between August 2001 and August 2002, when L.P. was twelve or thirteen. The first count, Count 1 of the information, alleged that Adcock " plac[ed] his finger in her vagina" ; Count 2 alleged that Adcock " plac[ed] his mouth on her vagina" ; and Count 3 alleged that Adcock " plac[ed] his penis against her vagina." Id. The three sexual misconduct counts--Counts 4 through 6--were alleged to have occurred between May 21, 2003 and September 20, 2004 when L.P. was between fourteen and less than sixteen years old. The language of these counts was identical to Counts 1-3 with respect to the sex acts Adcock was alleged to have committed.
During Adcock's jury trial in September 2009, he successfully moved for a directed verdict on Counts 2 and 5 of the information because there was no evidence that Adcock had ever performed oral sex on L.P. The jury returned guilty verdicts on Counts 1, 3, 4, and 6. Adcock also was found to be a repeat sexual offender (" RSO" ) and sentenced accordingly.
On direct appeal, Adcock's attorney argued that the prosecutor committed misconduct during voir dire, that the trial court improperly allowed the State to make an amendment related to notice of
the RSO, and that double jeopardy precluded his multiple convictions for both child molesting and sexual misconduct with a minor. We rejected all of Adcock's arguments and affirmed. Adcock v. State,933 N.E.2d 21 (Ind.Ct.App. 2010). In addressing Adcock's double jeopardy claim, we specifically noted, " Adcock does not challenge the ...