Larry Lillard v. State of Indiana (mem. dec.), 49A02-1608-PC-1879

Background

In 2005 Larry Lillard was convicted of Class A child molesting and sentenced to 60 years; conviction rested on testimony from the victim C.S. describing molestations in summer 2002.
Lillard was charged for conduct between June 1 and August 31, 2002; the victim testified about two incidents within that charging period.
On direct appeal Lillard raised several issues; two arguments were waived for lack of proper citation/presentation and one was rejected on the merits.
Lillard filed a post-conviction petition arguing ineffective assistance of trial counsel (failure to object to other-acts testimony under Evidence Rule 404(b); failure to lay foundation/admit a hospital intake form, Exhibit D) and ineffective assistance of appellate counsel (waiver of issues by poor briefing).
The post-conviction court denied relief; the Court of Appeals affirmed, finding no prejudice from counsel’s alleged failures because the contested evidence would have been admissible or its exclusion speculative.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Trial counsel failed to timely object to testimony of other uncharged molestations (404(b))	Lillard: timely objection would have excluded the other-acts testimony under Evidence Rule 404(b) and prevented prejudice	State: the testimony described acts within the charged time frame and served as direct evidence, not improper propensity evidence	Held: No prejudice — testimony would have been admissible as direct evidence tied to the charged period
Trial counsel failed to establish foundation for Exhibit D (hospital intake form) to impeach victim	Lillard: further investigation would have shown the form admissible (medical or business-record exception) and could have impeached C.S.	State: form’s authorship and content were unreliable; proffered affidavit did not establish who made the statement	Held: No prejudice — petitioner failed to show investigation would have produced admissible proof or that the note would have altered the verdict
Appellate counsel ineffective for failing to preserve/brief issues properly	Lillard: appellate counsel’s deficient briefing waived two issues on direct appeal causing loss of appellate review	State: even competent briefing could not have altered outcome because the underlying evidence was admissible or Exhibit D likely inadmissible	Held: No prejudice — appellate ineffectiveness claim fails because results would not have differed
Burden and standard on post-conviction ineffective-assistance claims	Lillard: (implicit) post-conviction court erred in applying standards	State: petitioner must show deficient performance and prejudice under Strickland and that the evidence as a whole compels a contrary result	Held: Standard applied correctly; petitioner failed to satisfy Strickland prejudice requirement

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance: deficient performance and prejudice)
Greenboam v. State, 766 N.E.2d 1247 (Ind. Ct. App. 2002) (other-acts evidence not admissible as common scheme when it’s prior propensity evidence)
Marshall v. State, 893 N.E.2d 1170 (Ind. Ct. App. 2008) (repeated molestations within charged period may be admissible as direct evidence)
Weatherford v. State, 619 N.E.2d 915 (Ind. 1993) (standard for reversing post-conviction findings: evidence must lead unerringly to opposite conclusion)
Fisher v. State, 810 N.E.2d 674 (Ind. 2004) (petitioner's burden by preponderance in post-conviction proceedings)