Father wins PCR on two counts of child molesting

A father convicted of three felony counts of molesting his daughter has successfully secured post-conviction relief from two of those counts. A Class A felony conviction, however, will stand. The ruling will cut the southern Indiana man’s 100-year sentence in half.

The case of James C. Absher v. State of Indiana, 20A-PC-1227, began in May 2004, when James Absher was spending the night at the home of his ex, Laura Rawlings, and their daughter, J.L. The next morning he offered to check on the children upstairs while Rawlings was downstairs, but when Rawlings went upstairs she found J.L. lying on her back on the floor with her underwear pulled down and her legs spread apart. Absher was straddling the child on his knees, with his jeans and underwear pulled down. Absher was holding his penis with one hand while he touched J.L.’s “vagina area” with the other.

Absher fled when Rawlings called police, but J.L. told law enforcement that Absher had put his penis in her vagina and it “felt bad.” A sexual assault examination on the girl revealed two abrasions in her genital area.

Absher was eventually located and claimed he unintentionally touched J.L. with his hand. When confronted with her claim that he touched her with his penis, he said he did not remember that occurring but assumed she was telling the truth.

On May 28, 2004, Asher was charged oin Floyd Circuit Court with one count of Class A felony child molesting. After multiple continuances his trial was set for June 12, 2006, and on June 9 the state moved to amend the charging information to add a second count of Class A felony child molesting as well as a charge of Class C felony child molesting.

Absher did not object to the motion to amend, the trial proceeded and he was found guilty as charged, receiving an aggregate sentence of 100 years. His direct appeal in 2007 failed, with the COA finding then that although the trial court erred by granting the motion to amend, Absher had not preserved the error for appellate review and had failed to prove fundamental error.

Absher’s subsequent petition for post-conviction relief was denied in June 2020, but the Indiana Court of Appeals partially reversed on Friday. He raised claims of ineffective assistance of both trial and appellate counsel.

On the issue of trial counsel performance, Absher first argued that his trial counsel was ineffective for failing to object to the state’s motion to amend the charging information. The appellate panel agreed, looking to Indiana Code § 35-34-1-5(b) and Haak v. State, 695 N.E.2d 944 (Ind. 1998).

“We conclude that based on the clear language of Section 35-34-1-5 and our supreme court’s decision in Haak, Absher’s trial counsel had a firm basis to object to the prosecutor’s amendment to add two new counts and that he performed deficiently by failing to object to the amendment as one of substance that was untimely pursuant to Section 35-34-1-5,” Judge Terry Crone wrote in a Friday opinion. “We further conclude that there is a reasonable probability that, but for trial counsel’s deficient performance, the result of the proceeding would be have been different.

“… Specifically, but for Asher’s trial counsel’s failure to object, the Absher I (appellate) court would have vacated the convictions for the counts added by the amendment just as our supreme court did in Fajardo,” Crone continued, referencing Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). “Accordingly, we find both deficient performance and prejudice.”

The court’s Friday decision will “likely be an outlier,” Crone wrote, noting that I.C. 35-34-1-5 was amended shortly after Fajardo was handed down “such that amendments of substance are permitted any time before trial so long as the defendant’s substantial rights are not prejudiced.” Though “a number of panels” found the amendment to be constitutionally retroactive, Crone said Absher’s case was distinguishable because the COA on direct appeal determined on the merits that the amendment was prohibited by the statute.

Thus, the denial of post-conviction relief on the grounds of ineffective assistance of trial counsel was reversed and the case was remanded to vacate Absher’s convictions and sentences for one count of Class A felony child molesting and the Class C felony count.

Absher also claimed his appellate counsel was ineffective for failing to argue insufficient evidence. The Court of Appeals again agreed, finding that claim “provides a significant independent basis for vacating the conviction and sentence for Count 2 … .”

Count 2 alleged Class A felony child molesting against Absher for placing his mouth on J.L.’s sex organ. The state’s forensic expert, Dr. Michael Spence, testified that amylase, an enzyme found in saliva, was found in J.L.’s underwear, which the state argued was sufficient evidence.

But “(a)ccording to Dr. Spence, one cannot make the leap to conclude that the amylase came from Absher’s saliva,” Crone wrote. Appellate counsel was deficient in failing to raise the sufficiency issue, he said, and the deficiency was prejudicial.

“Given the paucity of probative evidence,” the judge wrote, “it is clearly more likely that the court on direct appeal would have concluded that the evidence was insufficient to support Count 2 and would have reversed Absher’s conviction on that count.”

But the Court of Appeals upheld the denial of post-conviction relief as to the other Class A felony charge, rejecting Absher’s argument that his trial counsel was ineffective for failing to object to comments the prosecutor made on rebuttal during closing arguments.

“Absher maintains that an objection would have been sustained on grounds that the remarks were calculated to inflame the passions of the jury, improperly expressed the prosecutor’s personal beliefs about Absher’s guilt, and vouched for J.L.’s credibility, and that the objectionable remarks prejudiced him because they caused the jury to focus on improper emotional considerations rather than evidence,” Crone wrote. “The State contends that trial counsel reasonably and strategically chose not to object to the remarks and therefore did not provide ineffective assistance. We agree.”