FOR PUBLICATION

ATTORNEY FOR APPELLANT:                    ATTORNEYS FOR APPELLEE:

F. THOMAS SCHORNHORST                      GREGORY F. ZOELLER
Oxford, Mississippi                        Attorney General of Indiana

                                           CHANDRA K. HEIN
                                           Deputy Attorney General
                                           Indianapolis, Indiana


                                                                Dec 19 2013, 9:10 am


                            IN THE
                  COURT OF APPEALS OF INDIANA

WILLIAM HINESLEY, III,                     )
                                           )
     Appellant-Defendant,                  )
                                           )
            vs.                            )        No. 55A05-1302-PC-80
                                           )
STATE OF INDIANA,                          )
                                           )
     Appellee-Plaintiff.                   )


                  APPEAL FROM THE MORGAN SUPERIOR COURT
                      The Honorable Jane Spencer Craney, Judge
                           Cause No. 55D03-1205-PC-673


                                December 19, 2013

                           OPINION – FOR PUBLICATION

CRONE, Judge
                                       Case Summary1

       Following a bench trial, William Hinesley, III, was convicted of class A felony child

molesting. After this Court affirmed his conviction on direct appeal, Hinesley filed a petition

for post-conviction relief claiming that he was denied the effective assistance of trial counsel

due to his counsel’s deliberate strategic choice to permit the trier of fact to consider as

substantive evidence hearsay statements attributed to the State’s primary witnesses. Hinesley

also claimed ineffective assistance due to his counsel’s failure to object to improper vouching

and uncharged misconduct testimony, and his counsel’s failure to introduce a medical report

into evidence at trial. In addition, Hinesley raised a freestanding claim of fundamental error

due to alleged prosecutorial misconduct based upon the prosecutor’s knowing introduction of

the alleged inadmissible hearsay, vouching, and uncharged misconduct evidence. The post-

conviction court denied relief, and Hinesley now appeals. Concluding that the post-

conviction court properly determined that Hinesley failed to demonstrate that his counsel’s

performance was deficient or prejudicial, and further concluding that his claim of

prosecutorial misconduct is unavailable, we affirm.

                               Facts and Procedural History

       On direct appeal, another panel of this Court recited the facts underlying Hinesley’s

conviction as follows:

       On the night of January 16, 2009, the Hinesley family was at home in Paragon,
       Indiana. Hinesley, his son William J. Hinesley, IV (“Billy”), who was twenty

       1
          We held oral argument on November 19, 2013, in Indianapolis. We thank counsel for their
preparation and presentations, and we commend them on their outstanding advocacy.


                                               2
       years old at the time, a foster daughter, V.V., who was thirteen years old at the
       time, and others were present. Eventually, Hinesley and V.V. were the only
       ones awake. They sat on a couch in the living room and talked as they
       watched a movie. Next, Hinesley got up and went into the kitchen. When he
       returned, he approached V.V. and pulled down her pants and underwear.
       Hinesley got on top of V.V. and put his penis in her vagina. After a short
       period of time, V.V. tried to push Hinesley away, and he got up and left the
       room. V.V. got up and pulled up her pants.

       Meanwhile, Billy was going to the kitchen to get a glass of water. He
       encountered V.V., who told him that she had just had sex with Hinesley. Billy
       sent V.V. to the master bedroom while he woke his sister, S.H., and had her go
       into the master bedroom with him and V.V. In the morning, Billy contacted
       his uncle, who was a police officer in Mooresville, Indiana, and the local
       police were contacted.

Hinesley v. State, No. 55A04-1102-CR-90, slip op. at 1 (Ind. Ct. App. Oct. 27, 2011). The

State charged Hinesley with two counts of class A felony child molesting and two counts of

class C felony child molesting. Prior to trial, the State dismissed one of the class C felony

counts.

       A bench trial was held on December 1, 2010. The State’s first witness was Detective

Dan Downing of the Morgan County Sheriff’s Department, the chief investigating officer in

Hinesley’s case. During his testimony, Detective Downing summarized unsworn statements

that he had taken from V.V. and Billy during interviews on the morning of January 17, 2009.

Detective Downing testified that Billy stated that he had left V.V. and Hinesley alone in the

living room and later came down the hallway and observed V.V. jump off the couch and pull

her pants up from around her ankle area. Trial Tr. at 17. Detective Downing testified that

Billy stated that he spoke with V.V. and asked her if he had seen what he thought he saw and

that V.V. had replied “yes.” Id. at 18.       Defense counsel did not object to Detective


                                              3
Downing’s testimony regarding Billy’s statement. A video recording of Billy’s interview

was also entered into evidence without objection. In that recording, Billy stated, “I guess I

asked her did he touch you in some spot. She said yes. And she told me that he had entered

her.” Id. at 21, State’s Ex. 2.

       Detective Downing then testified regarding V.V.’s interview. Detective Downing

described V.V.’s demeanor as “[r]elatively childlike[,] she was very protected, very guarded.

She acted much younger … than her physical age.” Id. at 23. He opined, “she seemed very

believable. I didn’t see any reason not to believe her statements, especially due to the fact

they were corroborated … by Billy.” Id. Detective Downing testified that V.V. stated that

she was resting her head in Hinesley’s lap when Hinesley left to go into the kitchen to get

something. Detective Downing testified that V.V. stated that, when Hinesley came back, he

began rubbing her breast, buttock, and vaginal area. Detective Downing recalled,

       she then stated that he made penetration of her vaginal area. She couldn’t tell
       me how long that went on or really give me any details about that. At that
       point in time she stated that Mr. Hinesley told her to pull her pants down, at
       which point in time he inserted … his penis into her vagina.

Id. at 25. When asked by the prosecutor, “What caused the intercourse to stop? Did she

indicate?” Detective Downing responded, “She said … that they heard a noise and Mr.

Hinesley got up off the top of her. At that point in time she seen Billy in the kitchen.” Id. at

27.

       Thereafter, V.V. was called as a witness by the State. She testified that she was

resting her head on Hinesley’s lap watching a movie when he got up to go to the kitchen.

When he returned, he pulled her pajama bottoms and panties down to her ankles. V.V.

                                               4
testified that Hinesley climbed on top of her and entered her vagina with his penis. She

stated that she was stunned at first and started saying, “I want to go to bed.” Id. at 117.

V.V. stated that she pushed Hinesley off her. V.V. testified that she then saw Billy walking

down the hall. Billy asked her if he “had seen what he just seen,” and she replied, “yes.” Id.

at 118. V.V. testified that she used slang words to describe the intercourse to Billy by stating

that Hinesley had put his “tweeter” into her “down there.” Id. at 120. On cross-examination,

V.V. admitted that, in a pretrial deposition, she said that she “forgot” or “wasn’t sure” if

Hinesley had penetrated her with his penis. Id. at 125, 143-45. V.V. testified that she was

lying when she gave that deposition testimony.

       Next, the State called Billy as a witness. Billy testified that V.V. told him that she had

sex with his father but that “[a]t this point in time I do not remember what I saw.” Id. at 170.

The prosecutor reminded Billy about his statement to Detective Downing and asked Billy if

he remembered telling Detective Downing that he actually saw V.V. pulling her pants up.

Billy indicated that he remembered saying the words “I think I saw” to Detective Downing

but claimed to now only recall what V.V. told him had happened and not what he saw. Id. at

174. Defense counsel cross-examined Billy by pointing out that Billy and V.V. were in a

sexual relationship at the time of the incident and that Billy repeatedly lied about and denied

the relationship during police interviews. Billy admitted that he was afraid of getting caught

in his sexual relationship with V.V. because he knew that he could be charged criminally due

to her age. Billy stated that he lied to Detective Downing about his relationship with V.V.

and that he “could have” lied when he told Detective Downing that he actually saw anything


                                               5
occur between his father and V.V. Id. at 178. Billy agreed that “there’s a good chance that

[he] didn’t see anything at all.” Id. Billy claimed on cross-examination that he learned after

his initial interview with Detective Downing that V.V. was pregnant with his baby at the time

of the alleged molestation.2

        At the close of the State’s case-in-chief, defense counsel moved for an involuntary

dismissal of counts II and III, one class A felony child molesting count alleging deviate

sexual conduct and the class C felony child molesting count alleging touching or fondling

with intent to arouse, due to the lack of evidence presented by the State. The trial court

granted the motion and dismissed counts II and III, and the trial proceeded as to count I, class

A felony child molesting alleging sexual intercourse. At the conclusion of the trial, the court

found Hinesley guilty of one count of class A felony child molesting. The trial court imposed

a sentence of thirty years with five years suspended. This Court affirmed Hinesley’s

conviction on direct appeal. See Hinesley, slip op. at 3. On May 16, 2012, Hinesley filed a

petition for post-conviction relief. The post-conviction court held an evidentiary hearing on

October 25 and November 16, 2012. Thereafter, on February 12, 2013, the post-conviction

court issued its findings of fact, conclusions of law, and judgment denying post-conviction

relief. This appeal followed.




        2
         The record indicates that, at the time of trial, V.V. had given birth to the baby and Billy was serving a
work-release prison sentence in Johnson County for class C felony child molesting due to his relationship with
V.V. Trial Tr. at 160-63, 183.

                                                        6
                                    Discussion and Decision

                                       Standard of Review

          In Wilkes v. State, 984 N.E.2d 1236 (Ind. 2013), our supreme court reiterated the

appellate standard of review regarding post-conviction proceedings. Specifically, the court

stated,

                 Post-conviction proceedings are civil proceedings in which the
          defendant must establish his claims by a preponderance of the evidence. Post-
          conviction proceedings do not offer a super appeal, rather, subsequent
          collateral challenges to convictions must be based on grounds enumerated in
          the post-conviction rules. Those grounds are limited to issues that were not
          known at the time of the original trial or that were not available on direct
          appeal. Issues available but not raised on direct appeal are waived, while
          issues litigated adversely to the defendant are res judicata. Claims of
          ineffective assistance of counsel and juror misconduct may be proper grounds
          for post-conviction proceedings.

                  Because the defendant is appealing from the denial of post-conviction
          relief, he is appealing from a negative judgment and bears the burden of proof.
          Thus, the defendant must establish that the evidence, as a whole, unmistakably
          and unerringly points to a conclusion contrary to the post-conviction court’s
          decision. In other words, the defendant must convince this Court that there is
          no way within the law that the court below could have reached the decision it
          did. We review the post-conviction court’s factual findings for clear error, but
          do not defer to its conclusions of law.

Id. at 1240 (citations and quotation marks omitted). We will not reweigh the evidence or

judge the credibility of witnesses, and will consider only the probative evidence and

reasonable inferences flowing therefrom that support the post-conviction court’s decision.

Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d

962.




                                                 7
                           I. Ineffective Assistance of Trial Counsel

       Hinesley argues that the post-conviction court erred in finding that he was not denied

the effective assistance of trial counsel. We review claims of ineffective assistance of

counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert. denied (1998). 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. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland, 466

U.S. at 687), cert. denied (2001). A counsel’s performance is deficient if it falls below an

objective standard of reasonableness based on prevailing professional norms. French v.

State, 778 N.E.2d 816, 824 (Ind. 2002). To establish 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. Isolated poor strategy, inexperience, or bad

tactics does not necessarily constitute ineffective assistance. Clark v. State, 668 N.E.2d

1206, 1211 (Ind. 1996), cert. denied (1997). When considering a claim of ineffective

assistance of counsel, we strongly presume “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, 1073 (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).


                                                8
       We must initially acknowledge that the judge who presided over Hinesley’s original

trial is also the judge who presided over the post-conviction proceedings. This Court has

stated that a post-conviction court’s findings and judgment should be entitled to “greater than

usual deference” when the post-conviction judge is the same judge who conducted the

original trial. See McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012), trans.

denied (2013). Significantly, in such a case, the judge is uniquely situated to assess whether

trial counsel’s performance fell below an objective standard of reasonableness and whether,

but for counsel’s unprofessional conduct, there was a reasonable probability that a different

verdict would have been reached. Id. (citing State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003)

(noting that because judge presided both at original trial and post-conviction hearing, judge

was in “an exceptional position” to assess weight and credibility of factual evidence and

whether defendant was deprived of fair trial)). In addition, as we discuss below within the

context of the judicial temperance presumption, we are presented here with a case in which

the judge here not only presided both at the original trial and the post-conviction hearing, but

was also the trier of fact in the bench trial. That being said, we turn to Hinesley’s multiple

claims of ineffectiveness.

                                    A. Hearsay Evidence

       Hinesley first asserts that his trial counsel rendered ineffective assistance by

deliberately failing to object to the State’s introduction of inadmissible hearsay evidence.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule


                                               9
801(c). Generally, an out-of-court statement offered to prove the truth of the matter asserted

is not admissible unless it falls under a hearsay exception. See Ind. Evidence Rule 802. If a

statement involves hearsay within hearsay, also known as multiple hearsay or double hearsay,

to be admissible, each part of the combined statements must conform with an exception to

the hearsay rule. See Ind. Evidence Rule 805.

       Before Billy and V.V. were called as witnesses, and without objection, Detective

Downing was permitted to summarize what both Billy and V.V. told him during interviews

conducted the morning after the alleged molestation. Detective Downing was also permitted

to testify regarding what V.V. had stated to Billy on the night in question, otherwise known

as hearsay within hearsay (V.V. to Billy, and Billy to Detective Downing). A video

recording of Billy’s interview was subsequently admitted into evidence without objection.

       At the post-conviction hearing, defense counsel testified that his deliberate decision to

not object to Detective Downing’s testimony and Billy’s recorded interview, which each

contained hearsay statements and at least one double hearsay statement, was necessary for his

trial strategy. He stated that his defense theory was “that the police investigation was

pathetic” and that V.V. “was lying … and told so many different stories that … that didn’t

add up.” PCR Tr. at 31. He believed that Billy’s and V.V.’s failure to disclose to Detective

Downing the fact that they were in a sexual relationship at the time of the alleged molestation

was evidence of their motive to fabricate their stories. Defense counsel testified,

       [T]he general tactical decision was made that Billy and V.V. were all over the
       place and giving so many different stories, that the more stories that were out
       there, the more different tales that they were telling, I believed that Judge


                                              10
       Craney would see that as (inaudible) and [not] find [Hinesley] guilty beyond a
       reasonable doubt.

Id. at 77.

       Hinesley argues that this strategy was unreasonable and that counsel clearly failed to

understand the distinction between hearsay evidence received as substantive evidence and

non-hearsay evidence of prior inconsistent statements admissible for impeachment purposes.

See Gray v. State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013) (noting that Ind. Evidence Rule

613 allows the use of a prior inconsistent statement to impeach a witness, and when used in

this manner, the statement is not hearsay). He argues that there was no excuse for allowing

the State to introduce inadmissible hearsay statements of a witness as substantive evidence

before that witness testified, especially when the statements were admissible for

impeachment purposes only. Hinesley argues that by allowing the hearsay to come in as

substantive evidence rather than waiting for Billy and V.V. to testify and to impeach them

with their prior inconsistent statements, “counsel [caused] irreparable damage to Hinesley’s

case.” Appellant’s Reply Br. at 6..

       A defendant has the burden to demonstrate to the post-conviction court that his

counsel’s trial strategy was unreasonable “under prevailing professional norms.” Strickland,

466 U.S. at 688. That the defense strategy was ultimately unsuccessful does not mean that

counsel was constitutionally ineffective. Wilkes, 984 N.E.2d at 1245 (citing Strickland, 466

U.S. at 689). Indeed, just because counsel is unable to pursue a reasonable defensive strategy

as effectively as he or she wanted to does not mean that the plan was a bad plan.

McCullough, 973 N.E.2d at 76. “Strickland does not guarantee perfect representation, only a

                                             11
reasonably competent attorney.” Woodson v. State, 961 N.E.2d 1035, 1041-42 (Ind. Ct. App.

2012) (citation and quotation marks omitted), trans. denied. “There is no constitutional

requirement that a defense attorney be a flawless strategist or tactician.” Id. at 1042.

         Regarding defense counsel’s chosen strategy, the post-conviction court specifically

found:

         20.   [Defense counsel] specifically and knowingly allowed the pre-trial
               statements of Billy and V.V. to be presented as substantive evidence,
               without making objections on any hearsay basis, based on his trial
               strategy of allowing what he believed to be multiple inconsistent
               statements to come into evidence;

         ….

         34.   During the PCR hearing, [defense counsel] testified that his theory of
               trial defense was that V.V. and the Defendant’s son, Billy, had
               fabricated the claims against Hinesley for ulterior reasons and that by
               allowing all of their pre-trial statements into evidence, he could
               demonstrate the various inconsistencies in their statements;

         35.   [Defense counsel] knowingly allowed hearsay evidence into the record
               as substantive evidence due to his trial strategy.

PCR App. at 147. Thereafter, the post-conviction court concluded that defense counsel’s

“failure to object to hearsay evidence from the various witnesses during the trial was a trial

strategy and was reasonable under the unique circumstances of this case.” Id. at 151.

         The State relies on our opinion in Curtis v. State, 905 N.E.2d 410 (Ind. Ct. App.

2009), trans. denied, to support the post-conviction court’s conclusion that permitting the

hearsay to be introduced constituted reasonable trial strategy. In Curtis, defense counsel

stipulated to the admission of various pretrial hearsay statements made by children regarding

alleged sexual abuse according to the strategy that “the inconsistencies among the statements

                                             12
might work to [the defendant’s] advantage.” Id. at 415. Indeed, counsel in Curtis knew “the

[hearsay] evidence would be introduced in one form or another” so he made the deliberate

strategic choice to try to use the evidence to the defendant’s advantage. Id. On appeal from

the denial of post-conviction relief, we concluded that the post-conviction court properly

refused to second-guess counsel’s strategy. Id. We specifically noted that, while the

defendant claimed that his convictions on four counts of child molesting and three counts of

battery demonstrated the failure of his counsel’s strategy, the defendant was acquitted on two

counts of vicarious sexual gratification. Accordingly, we concluded that although the record

was unclear, “the strategy employed by [defense] counsel may have been a factor in those

acquittals.” Id.

       While Curtis is not precisely on point factually, its reasoning regarding the deliberate

trial strategy chosen by defense counsel here is instructive. Hinesley concedes that the

hearsay evidence was admissible for impeachment purposes, and therefore the evidence was

going to be admitted in one form or another. As defense counsel explained during the post-

conviction hearing, he hoped that allowing all of the statements into evidence and

demonstrating the inconsistencies among the multiple statements would work to Hinesley’s

advantage to show V.V.’s and Billy’s motive to fabricate and to create reasonable doubt.

While counsel’s manner of execution may not have been perfect or even preferred, it appears

that his performance was consistently aimed at executing this chosen defense strategy. To

the extent that Hinesley claims that his conviction demonstrates the failure of his counsel’s

strategy, we note that the trial court dismissed two child molesting counts at the close of the


                                              13
State’s case-in-chief due to lack of evidence. As in Curtis, although the record is unclear, the

strategy employed by counsel may have been a factor in those dismissals. We cannot say that

the post-conviction court erred when it concluded that defense counsel’s trial strategy was

reasonable under the unique circumstances of this case.

                                   B. Vouching Testimony

       Hinesley next claims that he was denied the effective assistance of counsel due to his

counsel’s failure to object and/or move to redact two instances of improper vouching

testimony. Regarding V.V., Detective Downing testified: “But she seemed very believable.

I didn’t see any reason not to believe her statements, especially due to the fact they were

corroborated [by] Billy.” Tr. at 23. Similarly, in his recorded statement which was admitted

into evidence, Billy stated to Detective Downing that “I don’t believe V.V. made this up.”

Id. at 21, State’s Ex. 2.

       Vouching testimony is generally prohibited under Indiana Evidence Rule 704(b),

which states: “Witnesses may not testify to opinions concerning intent, guilt, or innocence in

a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or

legal conclusions.” Such testimony invades the province of the jury because it is essential

that the trier of fact determine the credibility of the witnesses and the weight of the evidence.

Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012).

       The State maintains that, even assuming that these two statements did constitute

improper vouching testimony to which a proper objection would have been sustained,




                                                14
counsel’s failure to object to the statements was again consistent with his trial strategy.3

During the post-conviction proceedings, defense counsel testified that although he did not

specifically recall his justification for not objecting to Detective Downing’s alleged vouching

testimony, he believed that his decision may have been premised on his general trial strategy

of trying to expose the “totality of Detective Downing’s pathetic investigation” and how

Detective Downing seemed to just accept V.V. and Billy’s account of things but “did not

know many of the facts” that he needed to know. PCR Tr. at 49. As for Billy’s alleged

vouching statement, counsel stated that he did not object because he knew that Billy’s

forthcoming trial testimony was going to be “quite to the contrary,” and thus this was again

supportive of his general strategy of pointing out the numerous variations in V.V.’s and

Billy’s stories. Id. at 50.

        While trial counsel could not specifically explain his reasons for failing to object, we

observe that courts should not insist that attorneys “‘confirm every aspect of the strategic

basis for his or her actions.’” Woodson, 961 N.E.2d 1041 (quoting Harrington v. Richter,

___ U.S.___, 131 S. Ct. 770, 790 (2011)). In light of defense counsel’s overall trial strategy,

counsel’s failure to object to the two alleged vouching statements did not constitute deficient


        3
            While we need not reach a conclusion as to whether a proper objection to the alleged vouching
statements would have been sustained, we note that Hinesley’s trial occurred in 2010, prior to our supreme
court’s opinion in Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012). Before Hoglund, courts allowed “some
accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate
experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters.” Lawrence
v. State, 464 N.E.2d 923, 925 (Ind. 1984). Applying the Lawrence rule, however, was not simple, as ‘“the line
between the impermissible vouching for the victim’s credibility on the one hand and rendering permissible
opinions with regard to a proclivity to not exaggerate or fantasize, on the other hand, is an extremely fine
one.’” Hoglund, 962 N.E.2d at 1233 (quoting Hook v. State, 705 N.E.2d 219, 223 n.4 (Ind. Ct. App. 1999),
trans. denied). Hoglund eliminated this “vouching testimony exception in the context of child-molesting
cases.” Palilonis v. State, 970 N.E.2d 713, 729 (Ind. Ct. App. 2012), trans. denied.

                                                       15
performance and was not unreasonable under the circumstances. Moreover, the concern with

improper vouching testimony is that the jury may be influenced in a manner inconsistent with

the defendant’s right to a fair trial. This particular concern is not present here because, as we

discuss more fully below, this was a bench trial. Finally, the record reveals that the two

statements were isolated and not pervasive and did not affect the outcome of the trial. We

are unpersuaded that but for counsel’s failure to object to the alleged improper vouching

statements, there is a reasonable probability that the verdict would have been different.

                                 C. Uncharged Misconduct

       Hinesley makes a brief argument regarding defense counsel’s failure to move to redact

from Billy’s recorded statement some “irrelevant” references as well as Billy’s reference to a

conversation with his sister, S.H., in which he stated that S.H. complained to him about

unwanted physical attention from Hinesley. Hinesley asserts that Billy’s reference to his

conversation with S.H. “implies” uncharged misconduct in violation of Indiana Evidence

Rule 404(b). Appellant’s Br. at 26. Evidence which creates a mere inference of prior

misconduct is not prohibited by Evidence Rule 404(b). Dixson v. State, 865 N.E.2d 704, 712

(Ind. Ct. App. 2007), trans. denied. Additionally, when looking at the evidence presented as

a whole, we observe that the reference was inconsequential, and Hinesley has failed to show

that he suffered prejudice as a result.

                                     D. Medical Report

        Hinesley next asserts that his counsel was ineffective for failing to obtain and

introduce the medical report from a physical examination of V.V. conducted the day after the


                                               16
molestation, which indicated that V.V. did not suffer injury to her vagina and that her hymen

remained intact. Hinesley concedes that although introduction of the report would not have

negated the molestation allegation, the report would have “strengthened” his case.

Appellant’s Br. at 31. Hinesley argues that “it would have been helpful to his defense to

show that not only had [V.V.’s] hymen survived her claimed penetration” but there was no

sign of any “abrupt” or “forcible” penetration. Appellant’s Reply Br. at 14.

       During post-conviction proceedings, defense counsel stated that he could not recall if

the medical report was in his file and could not explain his failure to both seek and introduce

the report. Regardless, we cannot say that the medical report has the same exculpatory value

that Hinesley now assigns it such that the result of the trial would have been different had

counsel introduced it. Part of the defense theory revolved around Billy and V.V.’s hidden

sexual relationship and V.V.’s pregnancy with Billy’s baby at the time of the alleged

molestation. In light of the fact that V.V. was both sexually active and pregnant at the time

of the alleged molestation, a report stating that V.V.’s hymen was still intact becomes far less

significant, as the report neither supports nor negates sexual contact with Hinesley, and could

tend to undermine the extent of the sexual relationship between V.V. and Billy.

       While Hinesley belabors the importance of the lack of evidence of physical trauma to

V.V.’s vagina reported by the examiner, we observe that V.V.’s trial testimony did not

recount a violent or abrupt sexual encounter. Moreover, the parties had already stipulated

that DNA tests, conducted at the same time as the physical examination, showed no evidence

of sexual contact between Hinesley and V.V. Tr. at 7. We agree with the State that the DNA


                                              17
evidence is by far the more compelling exculpatory evidence and is also evidence not

inconsistent with the defense strategy. We cannot say that failure to introduce the medical

report constituted ineffective assistance of counsel. See, e.g., Kubsch v. State, 934 N.E.2d

1138, 1142 (Ind. 2010) (refusing to find ineffective assistance in failing to introduce

allegedly exculpatory evidence when that evidence did not support the defense theory and it

was impossible to conclude that the evidence had exculpatory value). Significantly, Hinesley

submitted the medical report at the post-conviction hearing, and the court determined that

even had counsel introduced the report at trial, the outcome would not have changed.

Hinesley has not met his burden on this issue.

                         E. Cumulative Impact & Judicial Temperance

        Hinesley maintains that the record reveals that, due to defense counsel’s unreasonable

trial strategy and multiple errors, his conviction was improperly based on evidence that

should have been excluded or, at the very least, disregarded. He contends that it was the

cumulative impact of his counsel’s poor decisions that rendered the representation ineffective

and caused him prejudice.4 A court making the prejudice inquiry must ask if the defendant

has met his burden of showing that the decision reached would reasonably likely have been




        4
          We note that, in his appellant’s brief, Hinesley alleges numerous other isolated deficiencies in
counsel’s performance that we conclude do not amount to ineffective assistance but choose not to specifically
address herein. (For example, he concedes that counsel effectively cross-examined V.V. in some respects, but
argues that counsel could have done better.) See Martin v. State, 760 N.E.2d 597, 601 n.3 (Ind. 2002). As our
supreme court has stated, “[a] multitude of marginal issues may hide those with merit. To quote Justice
Jackson: ‘Legal contentions, like currency, depreciate through over-issue.”’ Id. (quoting Justice Robert H.
Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951)).


                                                     18
different absent the errors. Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997) (citing

Strickland, 466 U.S. at 696). Hinesley cannot demonstrate that he suffered such prejudice.

        In considering whether Hinesley suffered prejudice, we look here to the application of

the judicial-temperance presumption. Hinesley’s trial was a bench trial and not a jury trial.

We generally presume that in a proceeding tried to the bench, a court renders its decisions

solely on the basis of relevant and probative evidence. Konopasek v. State, 946 N.E.2d 23,

28 (Ind. 2011). This longstanding principle has been termed the judicial-temperance

presumption. Id.         We presume that the trial judge is aware of and knows the law and

considers only evidence properly before him or her in reaching a decision. Conley v. State,

972 N.E.2d 864, 873 (Ind. 2012). The risk of prejudice is quelled when the evidence is

solely before the trial court. Id.5

        Although the post-conviction court acknowledged that defense counsel allowed

hearsay evidence to be presented by the State as substantive evidence without objection, the

post-conviction court did not indicate that, as the trial judge, she relied on that evidence. To

the contrary, Judge Craney specifically concluded that, “regardless of any hearsay admitted

without objection,” she “found V.V. to be a credible witness and believed her testimony.”

Appellant’s App. at 163. Judge Craney’s conclusion that she did not rely on inadmissible


        5
           Our supreme court has noted that the judicial-temperance presumption, although broad, is not without
limits. Konopasek, 946 N.E.2d at 28. In cases where a defendant has made a specific objection to evidence
that is overruled, it becomes “a curious ratiocinative process which presumes that the trial court will disregard
that which it holds admissible over specific objection.” Id. (citing Fletcher v. State, 264 Ind. 132, 137, 340
N.E.2d 771, 774-75 (1976)). Therefore, one way that a defendant can overcome the presumption is by
showing that the trial court admitted evidence over a specific objection. Id. at 29.



                                                       19
evidence is further supported by the fact that she dismissed two of the child molesting counts,

specifically count II regarding deviate sexual conduct and count III, touching or fondling

with intent to arouse, as the only evidence of those counts came in through Detective

Downing’s testimony as opposed to V.V.’s direct testimony. Regarding Judge Craney’s

alleged reliance on vouching or uncharged misconduct evidence due to defense counsel’s

trial strategy, while she did not affirmatively state in her findings that she did not improperly

rely on that evidence in reaching her verdict, Hinesley has given us no cause to presume that

she did not. Under the circumstances, Hinesley has failed to rebut the judicial-temperance

presumption.

       In sum, Hinesley has failed to demonstrate a reasonable probability that, but for

counsel’s alleged unprofessional errors, the result of the proceeding would have been

different. As stated earlier, Judge Craney was not only the trier of fact and the trial judge,

but she was also the post-conviction judge. We cannot imagine a post-conviction jurist in a

better position to assess Hinesley’s current claims of ineffective assistance of counsel. Judge

Craney has made such an assessment, and her findings and judgment are entitled to greater

than usual deference by this Court. See McCullough, 973 N.E.2d at 75. Hinesley has not met

his burden to show that the evidence, as a whole, unmistakably and unerringly points to a

contrary conclusion. Based upon the foregoing, we conclude that the post-conviction court

did not err when it concluded that Hinesley was not denied the effective assistance of trial

counsel.




                                               20
                                        II. Prosecutorial Misconduct

        Finally, in addition to claiming that his counsel was ineffective for failing to object to

the introduction of alleged inadmissible evidence, Hinesley asserts that the prosecutor

committed misconduct by knowingly introducing and/or eliciting that evidence. Because this

issue was known and available on direct appeal but not raised, Hinesley’s claim is not

available as a freestanding claim of fundamental error on petition for post-conviction relief.

Freestanding claims of fundamental error are not available in post-conviction proceedings.

Sanders v. State, 765 N.E.2d 591, 591 (Ind. 2002); Graham v. State, 941 N.E.2d 1091, 1097

(Ind. Ct. App. 2011) aff’d on reh’g, 947 N.E.2d. 962.6 The judgment of the post-conviction

court is affirmed..

        Affirmed.

BARNES, J., and PYLE, J., concur.




        6
            Hinesley concedes that freestanding claims of fundamental error are unavailable on post-conviction
relief, but invites us to address the following question: When a post-conviction petitioner was represented by
the same lawyer on direct appeal as at trial, and where that lawyer could not assert his own ineffectiveness at
trial or assert fundamental error because of counsel’s failure to object to prosecutorial misconduct, may a post-
conviction petitioner raise prosecutorial misconduct as a freestanding issue? Hinesley urges us to recognize a
limited exception to our supreme court’s established holding that freestanding fundamental error claims are not
available to a post-conviction petitioner. He directs us to our supreme court’s opinion in Askew v. State, 500
N.E.2d 1219 (Ind. 1986), in which the court acknowledged that because the same counsel represented the
appellant at trial and on appeal, it is unreasonable to believe that counsel would have raised the question of his
own competency on appeal. Id. at 1220. Hinesley argues that the precedent precluding arguing fundamental
error in post-conviction proceedings is premised upon the assumption that the petitioner had one fair
opportunity to raise an issue on direct appeal and that, because Hinesley’s trial and appellate counsel were the
same, Hinesley did not have that opportunity regarding prosecutorial misconduct because it was intertwined
with ineffectiveness of counsel. While Hinesley points out an interesting quandary, absent specific direction
from our supreme court, we decline his invitation to recognize an exception to the established precedent.

                                                       21
.




    22
