MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Jun 23 2020, 8:37 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
Steven Knecht                                            Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacob I. Stidham,                                        June 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PC-2702
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Sean M. Persin
Appellee                                                 Trial Court Cause No.
                                                         79C01-1608-PC-32



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020              Page 1 of 17
                                             Case Summary
[1]   Jacob I. Stidham appeals from the denial of his petition for post-conviction

      relief (PCR). On appeal, he asserts that the post-conviction court erred in

      rejecting his claim of ineffective assistance of trial counsel.


[2]   We affirm.


                                   Facts & Procedural History
[3]   The facts as set out on direct appeal follow:


              On March 5, 2011, R.M. and A.T. were in the Chauncey Hill
              area in Lafayette to celebrate a friend’s birthday. After drinking
              at some bars and eating at a fast food restaurant, R.M. began
              calling for a taxi cab on her cell phone to take her and A.T. back
              to where they were staying.


              At approximately 3:30 a.m., while R.M. and A.T. were waiting
              for the cab, Stidham pulled up in a white SUV. R.M. assumed
              that Stidham was the driver from the taxi cab company. Both
              girls entered the SUV and R.M. noticed that A.T. had “passed
              out” in the back of Stidham’s vehicle. At some point, Stidham
              stopped the vehicle and ordered R.M. to perform fellatio on him.
              When R.M. refused, Stidham grabbed R.M.’s head and pulled
              her close to him.


              R.M. escaped Stidham’s grasp, called 911, and told the
              dispatcher that her friend had “passed out” in the back of
              Stidham’s vehicle. While R.M. was talking with the dispatcher,
              Stidham removed R.M.’s seatbelt, opened the passenger side
              door, and shoved her out of the vehicle. Stidham then sped away
              with A.T. still in the back seat.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 2 of 17
        R.M. then ran to a nearby residence, where she again called 911
        and attempted to call A.T.’s cell phone. The police were unable
        to find Stidham’s vehicle in light of the description that R.M. had
        given them.


        At approximately 6:29 a.m., A.T. staggered into a Speedway Gas
        Station (Speedway) on Old U.S. 231 South in Lafayette. A.T.
        was missing her coat and purse, so she used the gas station’s
        telephone to contact her family. A.T. noticed that her bra was
        unhooked and was experiencing soreness in her vaginal area.


        Detective Travis Dowell of the Tippecanoe County Sheriff’s
        Department arrived at the Speedway and observed that A.T. was
        cold, upset, and crying. A.T. was transported to the hospital
        where Shannon Luper, a certified Sexual Assault Nurse
        Examiner, performed a rape test on A.T. and recovered a
        quantity of DNA from A.T.’s right buttock. Luper also found
        white secretion and several red abrasions in A.T.’s vagina, and
        some bruises on A.T.’s right knee and forearms.


        The police subsequently tested the DNA and found Stidham’s
        DNA on record that matched that which was recovered from
        A.T. Thereafter, on June 21, 2011, police officers obtained a
        search warrant that authorized them to obtain a DNA exemplar
        from Stidham. The DNA matched that which was recovered
        near A.T.’s right buttock. The police also executed a search
        warrant for Stidham’s apartment, where A.T.’s digital camera
        was discovered. The camera revealed digital photos of A.T.’s
        activities on the night of the assault.


        Stidham was arrested, and shortly thereafter, he called a friend,
        Benita Allen, and asked her to move a blue container from
        another apartment where he occasionally resided. Stidham also
        requested that Allen not tell the police where he lived. However,
        following Stidham’s arrest and release on bond, the police

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 3 of 17
        learned about the other residence. Thus, they obtained a search
        warrant for this residence and discovered a newspaper article
        about the assault on R.M. and A.T. The officers also found
        several articles of female clothing in a tub.


                                                 ***


        Several days after Stidham had attacked R.M. and raped A.T.,
        Stidham told a friend, Beau Kerkhoff, what he had done to A.T.
        and R.M. During that conversation, Stidham admitted having
        sexual intercourse with one of the women.


                                                 ***


        R.M. testified that in the early morning of March 6, 2011, she
        made approximately five calls for a taxi-cab to take her and A.T.
        home from a restaurant in Lafayette. R.M. also described A.T.’s
        state of intoxication that morning, explaining that “she was
        definitely impaired. She was not walking straight.... I did not feel
        that she was capable of making a decision.”


        A.T. testified that she remembered drinking alcohol that evening,
        but had no recollection of the events after her fourth or fifth
        drink. A.T. testified that she only remembered going to the first
        bar after dinner, that she did not remember leaving, did not recall
        going to other bars or the restaurant, and did not remember
        entering Stidham’s vehicle. A.T. testified that the next thing she
        remembered was waking up outside the Speedway and not
        knowing where she was.


        A.T. also denied that she gave Stidham permission to have her
        camera, did not have consensual sexual intercourse with
        Stidham, and testified that she was unaware that Stidham had
        sexual intercourse with her. Luper, the sexual assault nurse who

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 4 of 17
        examined her, testified that A.T. sustained vaginal injuries, and
        that the injuries were most likely sustained during nonconsensual
        sexual intercourse.


        Kerkhoff testified about the conversation that he had with
        Stidham a short time after the attacks where Stidham mentioned
        that he had picked up two women from a bar, had dropped one
        of them off, and had sexual intercourse with the other.


        The State introduced evidence of Stidham’s cell phone records
        that placed him in the area where the attacks occurred on March
        6, 2011, between 12:55 a.m. and 3:00 a.m., leaving the Lafayette
        area at 5:11 a.m., and being near the intersection of U.S. 231 and
        U.S. 52 near Otterbein at 5:20 a.m.


        R.M.’s cell phone records placed her in the same area until 3:00
        a.m. on March 6 and in an area near U.S. 31 after 3:00 a.m. Her
        records also indicated that she had called a taxi company at least
        four times that evening. A.T.’s cell phone records placed her in
        the Chauncey Village area until approximately 3:00 a.m., at
        which point the calls that were made to her were forwarded to
        her voicemail.


        Stidham testified that he had a consensual sexual encounter in
        his Jeep with a woman he had met outside of Harry’s bar.
        Stidham claimed that the woman performed fellatio and that he
        ejaculated on her hand. Stidham also claimed that the woman
        had left her camera with him. Stidham then alleged that he did
        not have any further contact with the woman that evening.


        During closing arguments, Stidham alleged that he was not the
        individual who picked up R.M. and A.T. Stidham further
        claimed that he had not committed confinement because R.M.
        and A.T. had voluntarily entered the vehicle. Finally, Stidham
        alleged that he did not commit rape because he did not have

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 5 of 17
              sexual intercourse with A.T. Rather, Stidham claimed that in
              light of A.T.’s “flirtatious behavior” that evening, she likely had
              sex with someone other than him.


      Stidham v. State, 79A02-1211-CR-939, slip op. at 1-4 (Ind. Ct. App. Dec. 31,

      2013) (record citations omitted).


[4]   On August 10, 2011, the State charged Stidham with numerous offenses against

      both A.T. and R.M., including confinement, receiving stolen property, public

      indecency, and attempted deviate conduct. 1 The State was permitted, over

      Stidham’s objection, to add a charge of rape days before trial. A three-day jury

      trial commenced on September 25, 2012. During the State’s case-in-chief, two

      detectives testified that when they transported Stidham to the hospital to obtain

      a DNA sample, Stidham provided no statement and did not ask any questions.

      In closing, the State referenced Stidham’s silence as evidence of his guilt.

      Stidham’s trial counsel did not object to the testimony of the detectives or the

      State’s comments during closing. Also, at trial, the State introduced into

      evidence A.T.’s camera that was found when police executed a search warrant

      at a location where Stidham was known to stay. The camera, however, was not

      specifically identified in the search warrant. Stidham’s counsel did not object to

      admission of evidence relating to the camera.




      1
       Stidham was charged with additional offenses stemming from a separate, but similar incident. Upon
      Stidham’s motion, these charges were severed and tried separately.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020                Page 6 of 17
[5]   The jury ultimately found Stidham guilty of two counts of criminal

      confinement, both Class C felonies; public indecency as a Class A

      misdemeanor; battery as a Class B misdemeanor; and rape as a Class B felony.

      On October 29, 2012, the trial court sentenced Stidham to an aggregate

      sentence of twenty-three and a half years in the Department of Correction. On

      direct appeal, Stidham unsuccessfully challenged the addition of the rape charge

      and the sufficiency of the evidence regarding his confinement and rape

      convictions.


[6]   Stidham filed a pro se PCR petition on August 29, 2016. On August 15, 2018,

      Stidham, by counsel, filed an amended PCR petition. In his petition, Stidham

      alleged he was denied his right to effective assistance of trial counsel under the

      United States and Indiana Constitutions. The post-conviction court held a

      hearing on March 20, 2019. During the hearing, Stidham’s trial counsel,

      appellate counsel, and Detectives Dowell and Jacob Amberger testified.

      Stidham’s trial counsel testified that he had been an attorney for over thirty-six

      years and that he would have objected to commentary on Stidham’s right to

      remain silent if he thought it presented an issue for appeal. He also testified

      that if he thought there was an issue with the admission of the camera, he

      would have taken pretrial action and objected at trial. Trial counsel

      summarized his experience regarding trial strategy and objections:


              As a matter of course, there are usually dozens of things that the
              defense lawyer could object to but I choose to not to because
              either it doesn’t bear on what’s persuasive to the jury or in some
              cases you have to make a close decision about whether or not

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 7 of 17
              your [sic] going to object and when your [sic] sitting in the trial
              you know it’s like checking down a defense you know you’re
              reading what’s going on. So yeah there’s reasons sometimes for
              trial strategy that you don’t object.


      Transcript Vol. 2 at 23. On October 21, 2019, the post-conviction court entered

      its findings of fact, conclusions of law, and order denying Stidham’s request for

      post-conviction relief. Stidham now appeals. Additional facts will be provided

      as necessary.


                                       Discussion & Decision
[7]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


[8]   A petitioner will prevail on a claim of ineffective assistance of counsel only

      upon a showing that counsel’s performance fell below an objective standard of

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 8 of 17
reasonableness and that the deficient performance prejudiced the petitioner.

Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must

demonstrate deficient performance, which is “representation that fell below an

objective standard of reasonableness, committing errors so serious that the

defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

second element, the petitioner must show prejudice, which is “a reasonable

probability that, but for counsel’s errors, the result of the proceeding would

have been different.” Id. at 1139. “A reasonable probability is one that is

sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Failure to satisfy either element

will cause an ineffectiveness claim to fail. Carrillo v. State, 982 N.E.2d 461, 464

(Ind. Ct. App. 2013). Thus, if a petitioner cannot establish prejudice, we need

not evaluate the reasonableness of counsel’s performance. Id.


        There is a strong presumption that counsel rendered adequate
        assistance and made all significant decisions in the exercise of
        reasonable professional judgment. Counsel is afforded
        considerable discretion in choosing strategy and tactics, and these
        decisions are entitled to deferential review. Isolated mistakes,
        poor strategy, inexperience, and instances of bad judgment do
        not necessarily render representation ineffective.


Stevens v. State, 770 N.E.2d 739, 746–47 (Ind. 2002) (citations omitted).




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 9 of 17
[9]   We observe that the choice of defense theory is a matter of trial strategy.

      Overstreet, 877 N.E.2d 144, 154 (Ind. 2007). Counsel is given “significant

      deference in choosing a strategy which, at the time and under the

      circumstances, he or she deems best.” Potter v. State, 684 N.E.2d 1127, 1133

      (Ind. 1997). “A reviewing court will not second-guess the propriety of trial

      counsel’s tactics.” Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002) (citation

      and quotation marks omitted). “[T]rial strategy is not subject to attack through

      an ineffective assistance of counsel claim, unless the strategy is so deficient or

      unreasonable as to fall outside of the objective standard of reasonableness.”

      Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). “This is so even when such

      choices may be subject to criticism or the choice ultimately prove[s] detrimental

      to the defendant.” Id. (citation and quotation marks omitted).Stidham argues

      that the post-conviction court erred in concluding that he was not denied the

      effective assistance of trial counsel. Stidham maintains that his trial counsel’s

      performance was deficient in two respects—failing to object to testimony and

      the State’s comments during closing argument, which he asserts amounted to

      Doyle 2 violations, and failing to challenge/object to the admission of evidence

      regarding A.T.’s camera because it was obtained outside the scope of a search

      warrant. He further argues that he was prejudiced thereby.




      2
          Doyle v. Ohio, 426 U.S. 610 (1976).


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 10 of 17
[10]   We first consider Stidham’s argument regarding alleged Doyle violations. After

       receiving a search warrant for Stidham’s DNA, Detectives Dowell and

       Amberger of the Tippecanoe County Sheriff’s Department went to Stidham’s

       place of employment and picked him up to transport him to the hospital for a

       blood draw. At trial, the State questioned Detective Dowell as follows:


               Q        Did you explain to him why you were there?


               A     Yeah well we explained to him that we had a warrant for
               his DNA.


               Q        Did he say anything or ask any questions?


               A        No.


                                                        ***


               Q      How did you describe his attitude and demeanor during
               this time?


               A     Pretty mellow. He wasn’t saying anything, like I said
               never asked us what this was about, never asked us what was
               going on, just going along with whatever, you know just go along
               with us.


       Exhibits Vol. 1 at 33. The State also questioned Detective Amberger:


               Q     Did you tell the defendant, Jacob Stidham that [you had a
               search warrant for his DNA]?


               A        Yes.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 11 of 17
               Q        Did he ask you any questions about it?


               A        No very little was said.


       Exhibits Vol. 2 at 112. During closing arguments, the State referred to this

       testimony:


               And also let’s look at the – let’s look at the defendant’s behavior.
               The behavior during the DNA sample he’s approached with a
               search warrant we need a sample of your blood, we need your
               DNA. Sure he’s cooperative does he ask what is going on?
               What are we doing? What’s this about? No questions.


       Id. at 175. Stidham argues that his trial counsel was ineffective because he did

       not object, move to strike, or request a curative instruction with regard to the

       above responses of the detectives or the State’s comments during closing on

       grounds of a Doyle violation.


[11]   Using a defendant’s post-Miranda silence for impeachment violates the Due

       Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. 610; U.S.

       Const. amend. XIV. In Doyle, the United States Supreme Court noted that

       Miranda warnings give the criminal defendant implicit assurances that his

       silence will carry no penalty. Id. at 618. “In such circumstances, it would be

       fundamentally unfair and a deprivation of due process to allow the arrested

       person’s silence to be used to impeach an explanation subsequently offered at

       trial.” Id. at 619. Indiana recognizes the rule set out in Doyle and does not

       allow prosecutors to use a defendant’s post-Miranda silence as a means of

       impeachment. Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998). The rule
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 12 of 17
       also applies to the use of a defendant’s silence as affirmative proof in the State’s

       case-in-chief. Kubsch v. State, 784 N.E.2d 905, 914 (Ind. 2003). 3


[12]   The post-conviction court found that during the State’s case-in-chief, the

       prosecutor “inappropriately highlighted” that Stidham did not ask any

       questions when presented with a search warrant for his DNA and that it was

       “improper” for the State to comment on such during its closing argument.

       Appellant’s Appendix at 92. Nevertheless, the post-conviction court concluded

       that, affording due deference to counsel’s strategy, Stidham’s counsel did not

       render deficient performance by not objecting to the testimony of the detectives

       as set out above. The court noted counsel’s years of experience and his

       testimony at the post-conviction hearing that sometimes he would not object if

       he did not believe an issue had a persuasive effect on the jury. The court also

       found that the detectives’ responses showed that Stidham was cooperative, and

       thus, they had some value to him. We also note that the challenged responses

       were minimal in terms of the overall testimony provided by the detectives.


[13]   The post-conviction court did conclude that trial counsel rendered deficient

       performance by not objecting to the State’s comments during closing argument

       and not asking that the jury be admonished or for a curative instruction.

       Clearly, the State’s comments during closing constituted a Doyle violation as the




       3
        In a case report prepared by Detective Dowell, he stated that when he and Detective Amberger confronted
       Stidham with the search warrant for his DNA, he advised Stidham of his Miranda rights and Stidham
       acknowledged that he understood his rights.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020               Page 13 of 17
       State asked the jury to consider Stidham’s silence when confronted with the

       DNA search warrant as evidence of his guilt.


[14]   The mere existence of a Doyle violation is not, however, per se grounds for

       relief. Doyle violations are subject to a harmless error review. Henson v. State,

       514 N.E.2d 1064, 1067 (Ind. 1987); Bieghler v. State, 481 N.E.2d 78, 92 (Ind.

       1985), cert. denied (1986). To determine whether a Doyle error is harmless, a

       reviewing court must ask if, absent the prosecutor’s allusion to the defendant’s

       post-Miranda silence, it is clear beyond a reasonable doubt that the jury would

       have returned a guilty verdict. See Yurina v. State, 474 N.E.2d 93, 96-97 (Ind.

       1985). Essentially, a Doyle violation is harmless “only when the court, after

       assessing the record as a whole to determine the probable impact of the

       improper evidence on the jury, can conclude beyond a reasonable doubt that

       the error did not influence the jury’s verdict.” Henson, 514 N.E.2d at 1067.

       Indiana courts look to the following five factors to determine whether a Doyle

       violation constitutes harmless error: 1) the use to which the prosecution puts

       the post-arrest silence; 2) who elected to pursue the line of questioning; 3) the

       quantum of other evidence indicative of guilt; 4) the intensity and frequency of

       the reference; and 5) the availability to the trial judge of an opportunity to grant

       a motion for mistrial or to give curative instructions. Id.


[15]   Having reviewed the record, we agree with the post-conviction court’s

       assessment of the factors and its conclusion that any Doyle violation was

       harmless beyond a reasonable doubt. As the post-conviction court found, the

       intensity and frequency of the references to Stidham’s silence were “extremely

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 14 of 17
       low” and the State did not “harp” on this evidence as there was other

       substantial evidence of guilt. Appellant’s Appendix at 92.


[16]   Aside from the challenged testimony and comment, the State presented

       evidence that Stidham told Kirkhoff that he picked up two women from a bar

       and had sexual intercourse with one of them; Stidham had access to a vehicle

       that matched the description of the car A.T. and R.M. got into; R.M.

       remembered specific details about the drive, including that they were headed to

       the south side of Lafayette, and she was pushed out of the vehicle and

       approached a house on the south side of Lafayette to get help; A.T. was cold,

       upset, and crying when she was located at a gas station on the south side of

       Lafayette; Stidham’s cell phone records showed that he was on the south side of

       Lafayette when the attack occurred even though he lives on the west side of

       Lafayette; A.T. was unconscious in the back seat of the vehicle and a medical

       examination revealed that she suffered vaginal injuries consistent with non-

       consensual intercourse; and Stidham’s DNA matched DNA that was found on

       A.T.’s right buttock and the chances of another Caucasian male meeting the

       same profile were 1 in 4.5 million. In light of the foregoing, we are confident

       that the references to Stidham’s silence as set our herein did not contribute to

       the jury’s verdict.


[17]   We now turn to Stidham’s argument that his trial counsel was ineffective for

       failing to object to admission of evidence pertaining to A.T.’s camera being

       found among Stidham’s possessions. The Fourth Amendment to the United

       States Constitution requires search warrants to “particularly describ[e] the place

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 15 of 17
       to be searched, and the persons or things to be seized.” The particularity

       requirement restricts the scope of the search, authorizing seizure of only those

       things described in the warrant. Lee v. State, 715 N.E.2d 1289, 1290 (Ind. Ct.

       App. 1999). If a search and seizure exceeds the scope of the search warrant, it

       is unconstitutional. Sidener v. State, 55 N.E.3d 380, 383 (Ind. Ct. App. 2016).

       Here, the search warrant identified four specific items law enforcement believed

       A.T. was missing: a black jacket, a red purse, a wallet, and a cell phone.

       Seizure of A.T.’s camera therefore exceeded the scope of the warrant and was

       unconstitutional.


[18]   The post-conviction court concluded that trial counsel could have filed a

       motion to suppress the camera and related evidence and that such motion

       would have been successful because the camera was seized outside the scope of

       the search warrant. 4 Rather than seeking to suppress the camera, Stidham’s

       trial counsel’s indicated that his strategy was to use pictures found on the

       camera to aid the defense. Specifically, Stidham’s defense was that A.T. was so

       intoxicated that she did not remember the events of the night or even recognize

       Stidham. To explain how his DNA was found on A.T., Stidham testified that

       A.T. performed fellatio on him and that he ejaculated on her hand and that




       4
         The post-conviction court properly concluded that the plain view doctrine does not apply. To seize
       evidence in plain view and not identified in a warrant, the initial intrusion must have been authorized under
       the Fourth Amendment, the items must have been in plain view, and the incriminating nature of the evidence
       must be immediately apparent. Jones v. State, 783 N.E.2d 1132, 1137 (Ind. 2003). The incriminating nature
       of the camera was not immediately apparent. Rather, it was seized because the officer executing the search
       warrant came across the camera in an unusual place. The officer was unable to confirm that the camera
       belonged to A.T. prior to seizing it.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020                  Page 16 of 17
       after they went back into the bar, A.T. asked him to hold her camera. He

       claimed that he never saw her again that night. Trial counsel pointed out that

       the pictures taken from the camera showed A.T. partying and flirting with other

       men and suggested that A.T. had sexual intercourse with someone other than

       Stidham, which theory was supported by the fact that other DNA found in

       A.T.’s pants did not belong to Stidham. We will not second-guess trial

       counsel’s strategy to use pictures from the camera found in Stidham’s

       possession to support the defense. See Davidson, 763 N.E.2d at 446.


[19]   Strategy aside, Stidham has failed to show how he was prejudiced. Even if trial

       counsel had successfully moved to suppress evidence related to A.T.’s camera

       or objected to its admission at trial, we cannot say that there is a reasonable

       probability of a different outcome given the DNA evidence, cell phone location

       records, and witness testimony. Stidham has not established that the post-

       conviction court erred in denying him relief based on his claims of ineffective

       assistance of counsel.


[20]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2702 | June 23, 2020   Page 17 of 17
