Edward Meiggs v. State of Indiana (mem. dec.)

E
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 30 2020, 9:37 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                       Curtis T. Hill Jr.
Law Office of Cynthia M. Carter, LLC                    Attorney General of Indiana
Indianapolis, Indiana                                   Sierra A. Murray
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Edward Meiggs,                                          December 30, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-PC-1067
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,                                       The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        82D03-1902-PC-1034



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020                Page 1 of 15
[1]   Edward Meiggs appeals the denial of his petition for post-conviction relief. We

      affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Meiggs’s direct appeal follow:

              On May 6, 2015, A.W. went to Evansville Metaphysics for an
              hour-long massage. Shortly after she arrived, Meiggs emerged
              and directed A.W. to a small room where the massage would
              take place. In preparation for the massage, A.W. removed all of
              her clothes except for her underwear.

              At the end of the hour, Meiggs asked A.W. if she wanted him to
              continue because his next client would not arrive for thirty
              minutes. She agreed, and he began massaging her lower legs.
              Meiggs touched her vulva over her underwear, then pulled her
              underwear to the side and inserted his fingers into her vagina.
              A.W. said “no” and tightened her legs, pushing them together.
              Tr. Vol. I p. 50. He ignored her, presumably pulled apart her
              tightened legs, and continued with the assault. He again inserted
              his fingers into her vagina, and she again said no. Still ignoring
              her, he placed his tongue on her anus and then inserted his
              tongue into her vagina. At that point, “she was afraid to resist
              anymore.”

Id. at 43.

A.W. did not fight back “[b]ecause [her]
              face was down the whole time; [she] didn’t know if he had a
              weapon; . . . [she] knew that [she] couldn’t win; [she] knew that
              there was nothing [she] could do.”

Id. at 59.

This behavior
              continued for ten to fifteen minutes; afterwards, Meiggs
              whispered in A.W.’s ear “that was nice thank you,” and A.W.
              left the office.

Id. at 6

0.
              A.W. was “shocked” and “shaken” after the incident and went to
              a friend’s home.
 Id. at 94. 
A.W. told her friend what had
              happened and called the police. The responding officer took
              A.W. to a local hospital for a rape kit examination. The Sexual

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 2 of 15
                 Assault Nurse Examiner collected internal and external genital
                 swabs and collected A.W.’s clothing and underwear. The
                 external genital swab contained male DNA; Meiggs could not be
                 excluded as a contributor to that sample. Tr. Vol. II p. 5. Testing
                 was later performed on A.W.’s clothing; Meiggs’s DNA was not
                 on the clothing but other unknown male DNA was.

      Meiggs v. State, No. 82A01-1706-CR-1261, slip op. at 2-3 (December 19, 2017),

      trans. denied.


[3]   On May 8, 2015, the State charged Meiggs with three counts of rape as level 3

      felonies. 1
 Id. at 3. 
At trial, counsel for Meiggs acknowledged Meiggs had given

      A.W. a massage but denied that he had in any way touched her beneath her

      underwear, emphasizing to the jury the lack of his DNA on A.W.’s clothing

      and internal genital swabs.
 Id.


[4] 
  The State intended to introduce into evidence the certificate of lab analysis

      regarding the DNA testing on A.W.’s clothing, but sought to redact all

      information regarding the unknown male DNA.
 Id. In part, Meiggs’s 
counsel

      challenged the redaction and asserted that this was not “a constitutional

      question,” but was an evidentiary question under Ind. Evidence Rule 412(b). 2



      1
       Count I alleged that Meiggs penetrated A.W.’s anus with his tongue, Count II alleged that he penetrated
      her vagina with his tongue, and Count III alleged that he penetrated her vagina with his finger.
      2
          At the time of trial, Ind. Evidence Rule 412 provided:

                 (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal
                 proceeding involving alleged sexual misconduct:
                          (1) evidence offered to prove that a victim or witness engaged in other sexual
                          behavior; or
                          (2) evidence offered to prove a victim’s or witness’s sexual predisposition.

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020                     Page 3 of 15
      Trial Transcript Volume I at 127. The trial court excluded the certificate of lab

      analysis from evidence altogether but permitted the lab analyst to testify that

      Meiggs’s DNA was not found on A.W.’s clothing. Meiggs, slip op. at 3-4.

      Meiggs wanted to cross-examine the analyst about the unknown male DNA

      found on the clothing, but the trial court prohibited that line of questioning,

      finding it irrelevant.
 Id. at 4.


[5] 
  The State presented the testimony of Nicole Hoffman, a forensic scientist, who

      stated on direct examination that amylase was detected on two external genital

      swabs and that amylase is an enzyme, a component of saliva, and is “most

      concentrated in saliva, but it can be found in lower quantity in other fluids such

      as urine, blood that kind of stuff.” Trial Transcript Volume I at 233. Nicole

      Keeling, a forensic biologist, testified that she did not find DNA consistent with

      Meiggs on one of the cuttings from A.W.’s underwear. She also testified that

      she concluded the Y-STR profile obtained from the combined external genital

      swabs was consistent with the Y-STR profile obtained from him but one




              (b) Exceptions.
                      (1) Criminal Cases. The court may admit the following evidence in a criminal
                      case:
                                (A) evidence of specific instances of a victim’s or witness’s sexual
                                behavior, if offered to prove that someone other than the defendant was
                                the source of semen, injury, or other physical evidence;
                                (B) evidence of specific instances of a victim’s or witness’s sexual
                                behavior with respect to the person accused of the sexual misconduct, if
                                offered by the defendant to prove consent or if offered by the prosecutor;
                                and
                                (C) evidence whose exclusion would violate the defendant’s
                                constitutional rights.

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020                 Page 4 of 15
      additional allele was detected, and Meiggs and all his male paternal relatives

      could not be excluded as potential Y-STR contributors.

[6]   The jury found Meiggs guilty of Count II and not guilty of the other two

      counts, and the court sentenced him to nine years. Meiggs, slip op. at 5.


[7]   On direct appeal, Meiggs argued that the trial court erroneously excluded the

      certificate of lab analysis and testimony of the expert witnesses related to the

      unknown male DNA found on A.W.’s clothing.
 

Id. at 5-6

. 
This Court affirmed

      and held:


              While Meiggs highlights the Rape Shield Rule in his briefs, it is
              apparent that the trial court did not exclude this evidence on that
              basis. Instead, the trial court excluded this evidence because it
              was irrelevant. Tr. p. 127. Indiana Evidence Rule 401 provides
              that evidence is relevant if it (1) has any tendency to make a fact
              more or less probable than it would be without the evidence; and
              (2) the fact is of consequence in determining the action.

              Here, the jury heard evidence that Meiggs’s DNA was not found
              on the internal genital swabs or A.W.’s clothing. Indeed,
              Meiggs’s counsel repeatedly emphasized this evidence
              throughout the trial, as it supported Meiggs’s defense that, while
              he had given A.W. a massage, he had not touched her beneath
              her underwear. Whether there was unknown male DNA on
              A.W.’s clothing is wholly irrelevant to the fact that Meiggs’s was
              not. This unknown DNA did not make it any more or less
              probable that Meiggs had committed the acts with which he was
              charged and was not of consequence in determining the action.
              Consequently, the trial court did not err by finding that this
              evidence was irrelevant and inadmissible.




      Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 5 of 15

       Id. at 5-6 
(footnote omitted). We also noted: “Meiggs spends much time

       arguing about his constitutional right to confront and cross-examine witnesses.

       He has no constitutional right, however, to cross-examine witnesses about

       matters that are irrelevant to his guilt or innocence.”
 Id. at 6 
n.4.


[8]    On February 26, 2019, Meiggs, pro se, filed a petition for post-conviction relief.

       On April 9, 2019, Meiggs by counsel filed an amended petition alleging he

       received ineffective assistance of trial counsel because he did not raise his Sixth

       Amendment right to present a defense.


[9]    On August 23, 2019, the court held a hearing. Attorney Mark Phillips,

       Meiggs’s trial counsel, testified that “we had lengthy discussion both in

       chambers and the record relating to my desire to have the jury hear about males

       other than [Meiggs] and the presence of their DNA on some cuttings I think

       from some shorts that were tested . . . .” Transcript Volume II at 13. Post-

       conviction counsel referenced Steward v. State, 
636 N.E.2d 143 
(Ind. Ct. App.

       1994), summarily aff’d in part, 
652 N.E.2d 490 
(Ind. 1995), and Davis v. State, 
749

       N.E.2d 552 
(Ind. Ct. App. 2001), trans. denied, and Attorney Phillips stated: “I

       don’t think I raised either of them by name in an argument because those facts

       are somewhat dissimilar from the allegations here.”
 Id. at 24.


[10] 
  On cross-examination, when asked if he made the strategic decision to argue

       the way he did and leave out cases that were factually different, he answered:

       “Yeah I mean I – any – any trial I’m in, uh, I’m making strategic decisions

       every minute.”
 Id. at 27. 
He also stated: “[I]f I didn’t reference those cases at


       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 6 of 15
       trial and I knew about ‘em then I – then I didn’t reference ‘em because I didn’t

       think they were applicable if I didn’t know about ‘em or if I didn’t remember

       them by name then I wouldn’t have referenced them by name.”
 Id.


[11] 
  When asked if he thought it was of some importance to bring out the distinction

       between amylase being a substance just in saliva versus in various bodily fluids,

       he answered “looking back, um, maybe that had an influence on the jury” and

       “[a]t the time I didn’t think it was a significant distinction because we alleged

       that it didn’t happen[]. And so because the internal swabs didn’t show that

       presence, um, the – the decision that I made strategically was if – if we

       contended that something didn’t penetrate then we don’t get into a distinction

       about something that’s not inside.”
 Id. He also stated:


               [L]ooking back . . . maybe if I’d made that distinction even
               though I don’t remember that being discussed . . . in the record, if
               I could have made that distinction maybe that would have made
               a difference then – then obviously I would have done it to help
               [Meiggs].



       Id. at 28. 
When asked if there was also a risk of confusing the jury with these

       very specific scientific points when the main point was whether something

       existed in a certain location, he answered:

               [I]t has been my experience with juries that you walk a fine line
               between attesting too much and given [sic] weight to something
               that before you started protesting they didn’t even consider it was
               relevant. So, yeah, I mean that’s always an issue and you sort of
               have to make the decision on the fly that you think is best serving
               your client and because I don’t recall there being testimony or

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 7 of 15
               evidence of that – of that kind of distinction, um, I didn’t – I
               didn’t at that point think it was important. Looking back, you
               know, maybe it – it – it very well was.



       Id.


[12] 
  The court denied Meiggs’s petition. With respect to Meiggs’s assertion that his

       trial counsel failed to raise a constitutional argument regarding the evidence of

       unknown male DNA, the court concluded that trial counsel’s “strategic

       decision to focus on the Rape Shield Rule exception, as well as the relevance of

       the evidence to his defense, was reasonable and, as a result, the Court does not

       find Phillips was ineffective based upon his decision.” Appellant’s Appendix

       Volume II at 133. As for his assertion that trial counsel failed to argue that

       amylase was not a synonym for saliva but is a substance also found in other

       bodily fluids, the court found it to be another challenge to the reasonableness of

       trial counsel’s strategy, evidence concerning the alternate sources for the

       amylase was before the jury, defense counsel “touched on the point that the

       testing done by state police technicians had not revealed the presence of any of

       the Defendant’s DNA and that what little DNA was found on the exterior

       genital swabs was not sufficient for testing purposes to identify the Defendant as

       the source of that DNA,” and that “[t]his is a perfectly rational defense given

       the victim’s description of how the assault occurred, including the duration of

       the assault, and the various places in her body where she alleged the Defendant

       had touched her.”
 Id. at 134.




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 8 of 15
                                                   Discussion

[13]   The petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Fisher v. State, 
810

       N.E.2d 674
, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing

       from the denial of post-conviction relief, the petitioner stands in the position of

       one appealing from a negative judgment. 
Fisher, 810 N.E.2d at 679
. On

       review, we will not reverse the judgment unless the evidence as a whole

       unerringly and unmistakably leads to a conclusion opposite that reached by the

       post-conviction court.
 Id. “A post-conviction court’s 
findings and judgment

       will be reversed only upon a showing of clear error – that which leaves us with

       a definite and firm conviction that a mistake has been made.”
 Id. In this

       review, 
we accept findings of fact unless clearly erroneous, but we accord no

       deference to conclusions of law.
 Id. The post-conviction court 
is the sole judge

       of the weight of the evidence and the credibility of witnesses.
 Id.


[14] 
  To prevail on a claim of ineffective assistance of counsel a petitioner must

       demonstrate both that his counsel’s performance was deficient and that the

       petitioner was prejudiced by the deficient performance. French v. State, 
778

       N.E.2d 816
, 824 (Ind. 2002) (citing Strickland v. Washington, 
466 U.S. 668
, 
104

       S. Ct. 2052 
(1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms.
 Id. To meet the 
appropriate test for prejudice, the petitioner must show

       that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different.
 Id. A reasonable

       Court 
of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 9 of 15
       probability is a probability sufficient to undermine confidence in the outcome.

       Perez v. State, 
748 N.E.2d 853
, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. 
French, 778 N.E.2d at 824
. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone.
 Id.


[15] 
  When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 
755 N.E.2d 1070
, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 
771 N.E.2d 70
, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 
668

       N.E.2d 1206
, 1211 (Ind. 1996), reh’g denied, cert. denied, 
520 U.S. 1171
, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 
492 N.E.2d 306
, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 
696 N.E.2d

       40
, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 
989 N.E.2d

       766
, 772 (Ind. 2013).




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 10 of 15
[16]   Meiggs argues that his trial counsel’s performance was deficient because he

       failed to argue the Sixth Amendment required that he be allowed to present

       evidence of other male DNA on A.W.’s underwear. He asserts a defendant

       may not be prohibited from “‘presenting exculpatory evidence concerning’ prior

       sexual acts allegedly committed against the victim.” Appellant’s Brief at 14

       (quoting 
Davis, 749 N.E.2d at 555
). He contends that Steward is particularly

       instructive. He also asserts that “amylase, which the State relied on in closing

       to argue for Mr. Meiggs’ guilt, is a substance found in other bodily fluids

       besides saliva – a point that Mr. Meiggs’ trial counsel neglected to argue or

       otherwise even elicit from witnesses.”
 Id. at 17.


[17] 
  In Steward, Bobby Joe Steward appealed convictions of child molesting related

       to a fifteen-year-old, S.M., and a twelve-year-old. 
636 N.E.2d 144-145
. On

       appeal, Steward argued that it was fundamental error to prevent admission of

       exculpatory evidence that at the same time S.M. disclosed acts of molestation

       by him, she made accusations that other individuals had molested her as well.


       Id. at 147. 
We held that Steward’s claim that Indiana’s Rape Shield Statute was

       facially unconstitutional failed, but stated that “the constitutionality of such a

       law as applied to preclude particular exculpatory evidence remains subject to

       examination on a case by case basis.”
 Id. at 148 
(quoting Tague v. Richards, 
3

       F.3d 1133
, 1137 (7th Cir. 1993) (quoting Sandoval v. Acevedo, 
996 F.2d 145
, 149

       (7th Cir. 1993), cert. denied, 
510 U.S. 916
, 
114 S. Ct. 307 
(1993))). We also

       stated that “application of the Rape Shield Statute ‘complies with the dictates of

       the Confrontation and Due Process Clauses only if it does not actually impinge

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 11 of 15
       upon [the defendant’s right to] cross-examination.’”
 Id. (quoting Saylor v. 
State,

       
559 N.E.2d 332
, 335 (Ind. Ct. App. 1990), trans. denied).


[18]   The Court discussed Saylor and Tague, both cases which addressed child

       molesting.
 Id. at 148
-149. The Court held:


               Steward’s constitutional claim is even more compelling than the
               claim asserted by the defendants in Saylor and Tague. In those
               cases, the evidence offered by the State merely tended to prove
               that sexual contact had occurred, the primary purpose for which
               it was introduced. However, both cases also discussed the risk of
               mistaken identification of the perpetrator through “partial
               corroboration.” 
Saylor, 559 N.E.2d at 334
; 
Tague, 3 F.3d at 1138
.
               In partial corroboration, once there is evidence that sexual
               contact did occur, the witness’s credibility is automatically
               “bolstered.” 
Tague, 3 F.3d at 1138
. This bolstering evidence
               invites the inference that because the victim was accurate in
               stating that sexual contact occurred, the victim must be accurate
               in stating that the defendant was the perpetrator. Id.; 
Saylor, 559
               N.E.2d at 334
. Therefore, in such cases, the defendant must be
               allowed to rebut this inference by adducing evidence that another
               person was the perpetrator. See
 id.

               In other words, 
the risk of partial corroboration arises when the
               State introduces evidence of the victim’s physical or
               psychological condition to prove that sexual contact occurred
               and, by implication, that the defendant was the perpetrator.
               Once admitted, such evidence may be impeached by the
               introduction through cross-examination of specific evidence
               which supports a reasonable inference and tends to prove that the
               conduct of a perpetrator other than the defendant is responsible
               for the victim’s condition which the State has placed at issue.
               Following Saylor and Tague, we emphasize that both the
               necessity for and the constitutional right to such cross-
               examination are limited to these specific and narrow

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 12 of 15
               circumstances and clearly do not permit a general inquiry into
               the victim’s sexual past or allow the defendant to posit
               hypothetical perpetrators, an inquiry which would violate the
               Rape Shield Statute.



       Id. at 149. 
The Court concluded that it was constitutional error to exclude

       evidence of prior molestations through cross-examination and to prohibit

       Steward from proving that there was another possible explanation for the

       victim’s behavior, which was consistent with that of a victim of child sexual

       abuse, and that he was denied his Sixth Amendment right of cross-examination.


       Id. at 150.


[19] 
  In Davis, Charles Davis appealed his convictions for molesting L.P., his twelve-

       year-old 
stepdaughter. 749 N.E.2d at 553
. On appeal, he argued that his right

       to confront witnesses against him was violated because the trial court refused to

       admit evidence regarding L.P.’s prior sexual conduct.
 Id. at 554. 
Specifically,

       he argued that such evidence was admissible because a physician’s report had

       been admitted into evidence indicating that L.P. had been sexually active prior

       to the time that L.P. had been examined by the physician.
 Id. He also

       contended 
that he should have been able to present evidence of L.P.’s prior

       sexual activity with an individual other than him in order to “complete the

       picture.”
 Id. The Court held 
that “[t]rial judges are afforded wide latitude

       insofar as the Confrontation Clause is concerned to impose reasonable limits on

       cross-examination based on concerns about harassment, prejudice, confusion of

       the issues, the witness’s safety or interrogation that is repetitive or only

       marginally relevant.”
 Id. at 554-555 
(citing Logan v. State, 
729 N.E.2d 125
, 134

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 13 of 15
       (Ind. 2000)). The Court cited Steward and concluded that “[w]ithout permitting

       Davis to introduce such exculpatory evidence, the only reasonable inference

       that the jury could have drawn from the evidence presented, was that Davis was

       the perpetrator and that L.P.’s accusations were true, because reasonable jurors

       would not think it typical that a twelve-year-old was sexually active.”
 Id. at

       556.

[20] 
  Unlike Steward and Davis, which involved children, A.W. testified at trial in

       April 2017 that she was twenty-five years old indicating she was in her early

       twenties in May 2015 when the offense occurred. Meiggs does not point to

       authority showing that the rationale in Steward and Davis has been extended

       beyond cases involving child molesting. Meiggs also does not assert that

       identity was at issue. Further, Meiggs’s trial counsel testified that he did not

       raise Steward or Davis by name because those facts were dissimilar from the

       allegations and indicated it was a strategic decision. And, as noted by the post-

       conviction court, this Court previously held that “[w]hether there was unknown

       male DNA on A.W.’s clothing is wholly irrelevant to the fact that Meiggs’s was

       not” and noted that Meiggs “has no constitutional right . . . to cross-examine

       witnesses about matters that are irrelevant to his guilt or innocence.” Meiggs,

       slip op. at 6, 6 n.4.


[21]   With respect to Meiggs’s argument that his trial counsel failed to argue or elicit

       testimony that amylase is found in other bodily fluids besides saliva, we note

       that such evidence was before the jury. Hoffman, the forensic scientist, testified

       on direct examination that amylase was detected on two external genital swabs

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 14 of 15
       and that amylase is an enzyme, a component of saliva, and that it is “most

       concentrated in saliva, but it can be found in lower quantity in other fluids such

       as urine, blood that kind of stuff.” Trial Transcript Volume I at 233. When

       asked if he thought it was of some importance to bring out the distinction

       between amylase being a substance just in saliva versus in various bodily fluids,

       Meiggs’s trial counsel answered “[a]t the time I didn’t think it was a significant

       distinction because we alleged that it didn’t happen[]. And so because the

       internal swabs didn’t show that presence, um, the – the decision that I made

       strategically was if – if we contended that something didn’t penetrate then we

       don’t get into a distinction about something that’s not inside.” Transcript

       Volume II at 27. The post-conviction court found Meiggs’s assertion that his

       trial counsel failed to argue that amylase was not a synonym for saliva but is a

       substance also found in other bodily fluids was merely a challenge to the

       reasonableness of trial counsel’s strategy and that trial counsel provided a

       perfectly rational defense. We cannot say that the evidence as a whole

       unerringly and unmistakably leads to a conclusion opposite that reached by the

       trial court.

[22]   For the foregoing reasons, we affirm the denial of Meiggs’s petition for post-

       conviction relief.

[23]   Affirmed.


       Vaidik, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-1067| December 30, 2020   Page 15 of 15

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