Brian S. Adcock v. State of Indiana
2014 Ind. App. LEXIS 595
| Ind. Ct. App. | 2014Background
- Victim L.P. alleged repeated sexual acts by stepfather Brian Adcock from childhood through high school, including digital penetration ("once or twice") during junior high and penis-to-vagina rubbing in high school. Charges were filed May 21, 2008.
- Adcock was tried in 2009 on three Class A child molesting counts and three Class B sexual misconduct-with-minor counts alleging deviate sexual conduct; jury convicted on four counts (Counts 1, 3, 4, 6) after directed verdicts granted on two counts for lack of evidence of oral sex.
- On direct appeal Adcock raised prosecutorial misconduct, an RSO notice amendment, and double jeopardy; sufficiency of the evidence was not challenged on appeal and the convictions were affirmed; transfer denied.
- Adcock filed a post-conviction relief (PCR) petition claiming appellate counsel was ineffective for failing to challenge sufficiency of the evidence; both parties moved for summary disposition and the PCR court granted the State’s motion without findings.
- The Court of Appeals reviewed de novo whether appellate counsel’s omission was deficient and prejudicial, finding the failure to raise plain, significant sufficiency issues was oversight and concluding reversal was required.
Issues
| Issue | Adcock's Argument | State's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not challenging sufficiency of evidence on direct appeal | Appellate counsel overlooked obvious sufficiency defects; counsel admitted never considering the issue | State defended convictions and opposed remand; argued factual issues and supported summary disposition | Counsel was ineffective as a matter of law; vacated convictions and PCR granted |
| Sufficiency of evidence for Counts alleging digital penetration (Counts 1 and 4) | L.P. testified to digital penetration but could not fix the date; Adcock argued age/date ambiguity required vacatur of Class A counts and showed Class B counts were time-barred | State argued testimony supported convictions and contended limitations and age were not dispositive | Vacated: lack of proof L.P. was under 14 for Class A; Class B alternative counts time-barred because acts before May 21, 2003 were outside limitations period |
| Sufficiency of evidence for penile contact counts (Counts 3 and 6) | Adcock argued testimony described rubbing/contact only, not penetration; Spurlock requires more than mere contact | State relied on Short to argue contact can prove penetration | Vacated: no evidence of penile penetration; contact testimony insufficient under Spurlock; convictions could not be reduced to lesser touching offenses |
| Whether any remedies could be a reduction rather than vacatur | Adcock argued defective proof required vacatur; State sought to preserve convictions where possible | State urged affirmation or reduction | Held vacatur required; vacation bars retrial under Double Jeopardy |
Key Cases Cited
- Barger v. State, 587 N.E.2d 1304 (Ind. 1992) (when victim's age lies near statutory dividing line, exact timing is critical and uncertainty may require conviction only for lesser or dismissal)
- King v. State, 560 N.E.2d 491 (Ind. 1990) (statute-of-limitations reversal where victim could not fix dates within limitations period)
- Spurlock v. State, 675 N.E.2d 312 (Ind. 1996) (mere genital contact is insufficient; victim's failure to state penetration and lack of medical evidence required reversal)
- Short v. State, 564 N.E.2d 553 (Ind. Ct. App. 1991) (penetration may be proven by slightest penetration, including external genitalia, but distinguishable where victim denies penetration)
- Downey v. State, 726 N.E.2d 794 (Ind. Ct. App. 2000) (molesting by fondling is not a factually-included lesser of molesting by penetration; cannot simply reduce conviction absent proof)
- Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005) (vacation of conviction for insufficient evidence bars retrial under Double Jeopardy)