Peaver v. State
2010 Ind. App. LEXIS 2213
| Ind. Ct. App. | 2010Background
- Peaver was convicted of child exploitation, a Class C felony, based on videotaped footage of a minor with the State introducing statements under the Protected Person Statute.
- Peaver lived with his girlfriend M.W.’s family; a videotape of M.W. naked from the waist down was discovered and M.W. alleged Peaver directed her to remove underwear.
- A pretrial notice sought to admit M.W.’s interview and statements under the Protected Person Statute, which the trial court admitted after a hearing.
- Peaver pursued direct appeal and also filed a Davis/Hatton petition for post-conviction relief alleging ineffective assistance of trial counsel, which the PCR court denied.
- The Davis/Hatton record and timing resulted in a procedural posture where the court addressed preserved issues on direct appeal and declined to entertain some IAC grounds raised only in PCR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of Protected Person Statute error | Peaver objected pretrial; failure to object at trial waives error | State asserts waiver through failure to object at trial | Issue waived; not preserved for review |
| Sufficiency of evidence for child exploitation | Evidence proves intent to arouse or satisfy sexual desires | Evidence insufficient to show specific intent | Evidence sufficient to support conviction |
| Davis/Hatton bifurcation of IAC claims | Could pursue IAC on direct appeal and PCR separately | Cannot divide IAC contentions between proceedings | Peaver cannot divide IAC theories between direct appeal and PCR |
| Impact of not interviewing B.P. (Peaver’s son) | B.P. testimony could have aided Peaver | Counsel’s decision not to call B.P. was not deficient | No deficient performance; trial counsel’s decisions were reasonable |
Key Cases Cited
- Woods v. State, 701 N.E.2d 1208 (Ind. 1998) (IAC claims may be brought in post-conviction if not raised on direct appeal; grounds cannot be split between forums)
- Allen v. State, 749 N.E.2d 1158 (Ind. 2001) (issues not raised in PCR may not be raised on post-conviction appeal)
- Sawyer v. State, 679 N.E.2d 1328 (Ind. 1997) (Sixth Amendment right to counsel; direct appeal IAC rule)
- Bieghler v. State, 690 N.E.2d 188 (Ind. 1997) (cited with Sawyer on IAC bifurcation concerns)
- Schlabach v. State, 842 N.E.2d 411 (Ind. Ct. App. 2006) (Davis/Hatton procedure to develop record for IAC issues)