Randal Shawn Dunham v. State of Indiana (mem. dec.), 12A02-1606-CR-1357

Defendant Randal Dunham was convicted by a jury of Level 4 felony child molesting for touching a nine-year-old (victim J.B.) while she slept at his home over a Thanksgiving weekend.
The State charged both Level 1 and Level 4 molesting; the Level 1 count was later dismissed.
Defense presented an alibi/innocence defense with witnesses placing Dunham away or asserting the child slept elsewhere; State presented child’s statements to family and investigators.
Trial court denied a defense motion for judgment on the evidence made after the State rested; defense did not renew that motion after resting.
Dunham was sentenced to seven years (three executed, four suspended) and required to register as a sexually violent predator; the court cited victim’s age, defendant’s position of trust, and a minor criminal history as aggravators and noted a presentence report assessing high risk of reoffense.
On appeal Dunham argued (1) ineffective assistance for counsel’s failure to renew the judgment-on-the-evidence motion after the defense rested, and (2) sentencing abuse because the court relied on his continued professed innocence via the presentence report.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Dunham)	Held
Was counsel ineffective for not moving again for judgment on the evidence after the defense rested?	Counsel’s decision was reasonable; burden on defendant to show prejudice and deficient performance absent record norm.	Failure to renew deprived court of opportunity to weigh alibi evidence before jury, creating reasonable probability of different outcome.	No. Counsel not shown deficient; trial court could not weigh credibility on such motion, so no prejudice.
Did the sentencing court improperly aggravate by considering Dunham’s continued professed innocence?	Any consideration was limited and the court separated presentence report observation from actual aggravators; valid aggravators supported sentence.	Court effectively punished Dunham for maintaining innocence, an improper aggravator.	No reversible abuse. Court cited valid aggravators (victim <12, position of trust, criminal history); any mention of innocence-related risk did not change outcome.

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: performance and prejudice)
Lafler v. Cooper, 566 U.S. 156 (remedying ineffective assistance)
Padilla v. Kentucky, 559 U.S. 356 (difficulty of overcoming Strickland)
Premo v. Moore, 562 U.S. 115 (prevailing professional norms inquiry)
Garcia v. State, 979 N.E.2d 156 (motion for judgment on the evidence may not weigh credibility)
State v. Taylor, 863 N.E.2d 917 (trial court cannot invade jury province on motions for judgment; "thirteenth juror" principle)
Farris v. State, 753 N.E.2d 641 (standard for appellate sufficiency review; no reweighing of evidence)
Anglemyer v. State, 868 N.E.2d 482 (standard for sentencing abuse review)
Sloan v. State, 16 N.E.3d 1018 (cannot use good-faith assertion of innocence as aggravator)
Kien v. State, 782 N.E.2d 398 (same principle regarding innocence as aggravator)
Baumholser v. State, 62 N.E.3d 411 (an enhanced sentence stands if valid aggravators suffice)