Jennifer Nelson for www.theindianalawyer.com
The Indiana Court of Appeals reversed a man’s convictions of Class A felony child molesting and Class B felony sexual misconduct with a minor based on his sexual advances toward his stepdaughter when she was in junior high and high school. The judges acknowledged as a result of their decision, the stepfather won’t face any legal consequences for those actions, but the state had a duty to present sufficient evidence to support those convictions.
Brian Adcock was convicted to two counts each of the felony child molesting and sexual misconduct with a minor in September 2009 after a jury trial. L.P was 20 at the time of the trial when she testified. The child molesting charges were based on incidents that took place when L.P was under 14 years of age in junior high; the sexual misconduct charges relate to when she was in high school.
Adcock directly appealed, but the COA affirmed his convictions, noting Adcock did not challenge the sufficiency of the evidence. He later sought post-conviction relief, contending he received ineffective assistance of trial and appellate counsel. The PCR court denied relief.
In Brian S. Adcock v. State of Indiana, 47A01-1407-PC-283, the COA focused on his appellate counsel claims, which argued his attorney should have challenged the sufficiency of the evidence on all counts. His appellate counsel said they had not considered moving for directed verdicts or challenging the sufficiency of the evidence on appeal, but believed there was in fact insufficient evidence on all the convictions.
When then Court of Appeals looked at the trial record, the judges found it littered with issues. L.P. couldn’t recall whether she was 13 or 14 when Adcock digitally penetrated her vagina. This is important because if she was 14, Adcock would have to have been charged with the less serious crime of Class B felony sexual misconduct of a minor, not Class A felony child molesting.
In addition, any charges against Adcock for sexual misconduct with a minor occurring before May 21, 2003, would have been time-barred by the five year statute of limitations since the state filed its information on May 21, 2008. Again, L.P. could not testify exactly when certain acts occurred on or after May 21, 2003, which would have been at the end of her eighth grade year.
“[W]e conclude appellate counsel, for no apparent strategic or tactical reason, overlooked significant and obvious problems with the sufficiency of the evidence supporting each of Adcock’s convictions. If such arguments had been made, there is more than a reasonable probability that they would have been successful; we would have been required to vacate each of the convictions. And, because those vacations would be based upon insufficient evidence, the State would be precluded by the Double Jeopardy Clause from retrying Adcock,†Judge Michael Barnes wrote. “We also conclude that these sufficiency problems are stronger than the issues appellate counsel actually raised on direct appeal. As such, Adcock received ineffective assistance of appellate counsel as a matter of law, and his convictions must now be vacated.â€
