MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          FILED
court except for the purpose of establishing                          Jun 28 2017, 5:37 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Jay M. Lee                                               James B. Martin
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald W. Campbell,                                      June 28, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A03-1610-PC-2328
        v.                                               Appeal from the
                                                         Lake Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Clarence D. Murray, Judge
                                                         The Honorable
                                                         Kathleen A. Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G02-1406-PC-5



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017          Page 1 of 16
[1]   After his conviction for murder was affirmed on direct appeal, Donald W.

      Campbell filed a petition for post-conviction relief, which the post-conviction

      court denied. Campbell now appeals and raises the following restated issues:


              I.       Whether the post-conviction court erred when it found
                       that his trial counsel did not provide ineffective assistance
                       when he did not object during the State’s closing to a
                       PowerPoint slide that insinuated Campbell was linked to
                       the crime through six pieces of DNA evidence; and


              II.      Whether the post-conviction court erred when it found
                       that Campbell’s appellate counsel was not ineffective for
                       not raising the PowerPoint slide issue on direct appeal as
                       fundamental error.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In June 1992, sixty-two-year-old Donna Hogue (“Hogue”) was murdered in her

      home in the Black Oak neighborhood of Gary, Indiana. A co-worker

      discovered her body on June 5, 1992, after Hogue had not appeared at work.

      Relevant facts, as set forth in our decision on direct appeal, are as follows:

              When co-worker Robert Powell stopped by her house to check
              on [Hogue], the inner door was slightly ajar, and upon entry he
              saw signs of a struggle: the house was in disarray, furniture was
              knocked over, and Donna’s glasses were lying broken on the
              carpet. Powell found Donna’s nude body lying face-down on a
              bed, with just a slipper on her foot, a doily tied around her neck,
              and a nightgown pulled up around her neck and arms. A knife



      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 2 of 16
        covered with a towel was sticking out of her back. Powell called
        the police and notified Donna’s family.


        The police found a blood-stained utility knife and a pool of blood
        in the living room next to the front door. They found pools of
        blood in other areas of the living room. A coffee table was
        overturned with a leg broken off, and a sofa cushion was on the
        floor. A trail of blood led to the bedroom where Donna’s body
        was found.


        An autopsy revealed that Donna had suffered a wide slash
        wound to her neck that cut her larynx and esophagus. She had
        also been stabbed nine times in the back. Six of the stab wounds
        had been driven so deeply that they lacerated a lung.


        The case remained unsolved until November 2008, when
        Detective Dennis Matthew Eaton of the Lake County Sheriff’s
        Department received an anonymous phone call from a woman
        claiming to have information about a 1992 murder in Black Oak.
        She called back a few days later, identified herself as Laurie
        McDonald, and said that her father Donald Campbell may have
        been involved in Donna Hogue’s murder. Campbell’s sister and
        Donna Hogue’s brother had been married at some point.


        Detective Eaton reviewed reports from the coroner’s office and
        the crime lab. After examining a list of evidence originally
        collected at the scene, he and Lisa Black of the Indiana State
        Police Laboratory resubmitted certain items for testing. They
        were interested in possible DNA results, something not available
        in 1992.


        During the investigation, Detective Eaton spoke with Loretta
        Earl. Loretta and Campbell divorced in 1982 but continued to
        live together in Black Oak until Loretta left him on May 15,
        1992.

Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 3 of 16
              Detective Eaton also spoke with Campbell’s nephew Ronnie
              Anglin and Ronnie’s wife Judy Anglin; Campbell and his brother
              Tommy Campbell had been staying with them in Black Oak at
              the time of the crime.


              Detective Eaton went to Campbell’s home in Sullivan, Indiana,
              with a warrant for his DNA. When Campbell asked for more
              information, Detective Eaton declined to say anything about the
              case unless they were at a police department where the
              conversation could be recorded. They went to the Sullivan
              County Sheriff’s Office, where Eaton took buccal swab samples
              from Campbell and told him he was investigating Donna
              Hogue’s murder. Campbell repeatedly denied knowing Donna
              Hogue.


              In June 2009, the State charged Campbell with murder.


      Campbell v. State, No. 45A04-1109-CR-473 (Ind. Ct. App. Feb. 28, 2013).


[4]   During the eight-day 2011 jury trial, a number of witnesses testified. Among

      those was Campbell’s nephew, Ronnie Anglin, who testified that, in May 1992,

      Campbell and his brother, Tommy, sometimes stayed at the Anglins’ house.

      Ronnie testified that he had told detectives that Campbell sometimes watched

      television at Hogue’s house and spent the night there. Trial Tr. at 478-80.

      When asked whether Campbell had told him about his going over to see

      Hogue, Anglin replied, “Donald didn’t have to tell me . . . the whole family

      knew it.” Id. at 480.


[5]   Among other witnesses, the State presented the testimony of Lisa Black, a

      DNA expert with the Indiana State Police crime lab. As is relevant here, Black

      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 4 of 16
      testified that a blood sample collected from Hogue’s back, Item 5A, was

      comprised of a mixture that “exhibited a major DNA profile that was consistent

      with [] Hogue and a minor DNA profile” and that Campbell “could not be

      excluded as the contributor to the minor DNA profile.” Trial Tr. at 1056.

      Another blood sample, Item 24, came from a swab of Hogue’s body, and it

      contained a partial profile of Hogue’s DNA along with another contributor

      containing a “Y” allele, indicating only that it came from a male. Id. at 1106.


[6]   With regard to testing of hair samples, Black testified that only hairs with roots,

      and the accompanying cellular material, can be analyzed for DNA. Id. at 1071-

      72. Transfer can occur through primary transfer, where hair falls directly from

      a person to a surface, or through secondary transfer, where hair is transferred

      from, for instance, through clothing or when multiple people share or use

      objects. Id. at 1082-84.


[7]   Black testified regarding testing of a sample of three hairs together, Item 5B,

      because the DNA was insufficient to submit them to individual analysis. Id.

      at 1058. Neither Hogue nor Campbell could be excluded as the source of the

      Item 5B hairs. Id. Black tested another hair recovered from Hogue’s body,

      Item 5B5, and she determined that its DNA profile “was consistent with

      coming from Donald Campbell.”1 Id. at 1064, 1122. Two other hairs, 23A2




      1
       Black testified that “[t]he DNA profile consistent with Donald Campbell would be found in one in 76
      billion of the Caucasian population, one in nine trillion of the African-American population, and one in 71
      billion of the Hispanic population.” Trial Tr. at 1064.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017             Page 5 of 16
      and 23A5, also were determined to be Donald’s within a reasonable degree of

      scientific certainty.2 Id. at 1079-81.


[8]   During the State’s closing argument, the prosecutor presented a slide showing a

      circle with the word “DEFENDANT” positioned in the middle, surrounded by

      six arrows – each labeled with an item of DNA that Black had tested and

      discussed – that were pointing toward the circle (“the PowerPoint Slide”).

      Pet’r’s Ex. C. The following DNA items appeared on the arrows: 5A, 5B, 5B5,

      23A2, 23A5, and 24. Id. The prosecutor stated, “So we have the defendant,

      ISP number 5A, 5B, 5B5, 23A2, 23A5, 24 all leading to guilty.” Trial Tr. at

      1363. Campbell’s trial counsel did not object.


[9]   The jury found Campbell guilty. The trial court sentenced him to fifty-eight

      years. Campbell appealed his conviction and sentencing, asserting that (1) the

      trial court wrongly admitted Loretta Earl’s testimony; (2) the trial court erred by

      admitting DNA evidence; (3) the State committed prosecutorial misconduct

      amounting to fundamental error by misstating facts in its PowerPoint

      presentation3; (4) the trial court erred by allowing the jury to use a transcript to




      2
       For 23A2, Black stated that “the statistic is one in 13 quadrillion for the Caucasian population, one in nine
      quintillion for the African-American population, and one in 21 quadrillion for the Hispanic population. Trial
      Tr. at 1079-80. For 23A5, Black testified that “the statistic is [one in] 710 billion of the Caucasian
      population, one in 140 trillion of African-American population, and one in 1.2 trillion of the Hispanic
      population.” Id. at 1080-81.
      3
        The issue raised on direct appeal concerning the PowerPoint presentation was distinct from that presented
      in Campbell’s post-conviction relief petition. In the direct appeal, he had asserted that the prosecutor had
      committed misconduct by stating in the PowerPoint that Campbell’s brother, Tommy, was disabled (and
      therefore, by inference, could not have murdered Hogue).

      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017              Page 6 of 16
       aid them in listening to Campbell’s interview; (5) the trial court abused its

       discretion in instructing the jury; (6) the evidence was insufficient to sustain

       Campbell’s conviction; and (7) the trial court abused its discretion in sentencing

       him. We affirmed Campbell’s conviction and sentence. Campbell v. State, No.

       45A04-1109-CR-473 (Ind. Ct. App. Feb. 28, 2013).


[10]   Campbell filed a pro-se petition for post-conviction relief, later amended by

       counsel, alleging that (1) his trial counsel provided ineffective assistance for

       failing to object during the State’s closing argument to the State’s PowerPoint

       presentation that referenced six pieces of DNA evidence in arrows that pointed

       to “DEFENDANT”, and (2) his appellate counsel provided ineffective

       assistance for failing to raise that PowerPoint presentation as fundamental

       error. Appellant’s App. at 48-49.


[11]   At the post-conviction hearing, the post-conviction court heard testimony from

       Campbell, whose testimony included his opinion that he had a good

       relationship with his trial attorney, Timothy Ormes (“Ormes”), and that Ormes

       visited Campbell and discussed the case with him. Campbell also presented the

       testimony of Ormes, who had been an attorney since 1987, was a county

       prosecutor for about eight years and then opened his own practice, which

       included public and private criminal defense work. Ormes had tried

       approximately one hundred cases, had represented murder defendants, and had

       dealt with DNA issues during his years of practice. As to Campbell’s case,

       Ormes recalled that he objected during the State’s closing regarding a

       misrepresentation in a slide and that the trial court overruled it, but the

       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 7 of 16
       prosecutor later acknowledged the error in her closing and corrected it. Ormes

       did not recall making further objections during the State’s closing, noting that

       he had been overruled once and “it looks bad” to “keep objecting.” PCR Tr. at

       19. He opined that “it’s a call” whether to object in that situation. Id. at 20.

       Campbell’s appellate attorney, Mark A. Bates (“Bates”), did not testify at the

       post-conviction hearing.4


[12]   The post-conviction court later issued findings of fact and conclusions of law

       denying Campbell’s petition, and he now appeals.


                                        Discussion and Decision
[13]   The purpose of a petition for post-conviction relief is to raise issues unknown or

       unavailable to a defendant at the time of the original trial and appeal. Benefield

       v. State, 945 N.E.2d 791, 796-97 (Ind. Ct. App. 2011). A post-conviction

       petition is not a substitute for an appeal, nor does it afford the petitioner a

       “super appeal.” Id. at 797. In post-conviction proceedings, the petitioner bears

       the burden of proof by a preponderance of the evidence. Id. When appealing

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

       one appealing from a negative judgment. Id. “‘To prevail on appeal from the

       denial of post-conviction relief, a petitioner must show that the evidence as a

       whole leads unerringly and unmistakably to a conclusion opposite that reached




       4
        We note that the post-conviction court admitted the record from the direct appeal and took judicial notice
       of the underlying file. Appellant’s Br. at 6; PCR Tr. at 11-12.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017             Page 8 of 16
       by the post-conviction court.’” Id. (quoting Kubsch v. State, 934 N.E.2d 1138,

       1144 (Ind. 2010)).


[14]   Here, the post-conviction court made findings of fact and conclusions of law in

       accordance with Indiana Post-Conviction Rule 1(6). “‘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. (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.

       2000)). We accept the post-conviction court’s findings of fact unless they are

       clearly erroneous, but we do not defer to the post-conviction court’s conclusions

       of law. Id. “‘The post-conviction court is the sole judge of the weight of the

       evidence and the credibility of witnesses.’” Id. (quoting Woods v. State, 701

       N.E.2d 1208, 1210 (Ind. 1998)).


                                                I. Trial Counsel

[15]   Campbell contends that he received ineffective assistance of trial counsel.

               When evaluating a claim of ineffective assistance of counsel, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
               defendant must show that counsel’s performance was deficient.
               This requires a showing that counsel’s representation fell below
               an objective standard of reasonableness and that the errors were
               so serious that they resulted in a denial of the right to counsel
               guaranteed to the defendant by the Sixth and Fourteenth
               Amendments. Second, the defendant must show that the
               deficient performance resulted in prejudice. To establish
               prejudice, a defendant must show that there is a reasonable
               probability that but for counsel’s unprofessional errors, the result

       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 9 of 16
               of the proceeding would have been different. A reasonable
               probability is a probability sufficient to undermine confidence in
               the outcome.


       Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citations omitted),

       trans. denied. If a claim of ineffective assistance can be disposed of by analyzing

       the prejudice prong alone, we will do so. Benefield, 945 N.E.2d at 797.


[16]   As we have recognized,


               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.


       Id.


[17]   Campbell asserts that trial counsel was ineffective for failing to object to the

       PowerPoint Slide and for failing to move for an admonishment or a mistrial.

       “[T]o prevail on a claim of ineffective assistance due to the failure to object, the

       defendant must show an objection would have been sustained if made.”

       Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007).


[18]   Here, the PowerPoint Slide identified six pieces of DNA evidence: Items 5A,

       5B, 5B5, 23A2, 23A5, 24. Each of those items of DNA labeled an arrow, and

       each arrow pointed to the word “DEFENDANT.” Pet’r’s Ex. C. It is

       undisputed that three of the six pieces of DNA evidence – Items 5B5, 23A2,
       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 10 of 16
       and 23A5 – were hairs that were determined to belong to Campbell within a

       reasonable degree of scientific certainty. Item 5A was a blood sample that trial

       counsel had earlier addressed when he objected to the prosecutor’s

       characterization of it as being “a major of [Hogue] and a minor of defendant,”

       when in fact it was not a minor of Campbell, but rather Campbell was a minor

       contributor in a mixture from which he could not be excluded. Both defense

       counsel and the prosecutor in their respective closing arguments clarified that

       Item 5A was a mixture from which Campbell could not be excluded.


[19]   The remaining two of the six items appearing in the PowerPoint Slide were

       Items 5B and 24. Item 5B was a mixture of hairs from which neither Hogue

       nor Campbell could be excluded; Item 24 was a blood swab that contained a

       partial profile of Hogue’s DNA and a lesser contributor from which there was

       insufficient data for a DNA profile.


[20]   The post-conviction court rejected Campbell’s claim that trial counsel rendered

       ineffective assistance when he failed to object to the PowerPoint Slide, and we

       agree for several reasons. First, as the post-conviction court observed, trial

       counsel did not state that each of those six items matched or were consistent

       with Campbell; rather, the prosecutor characterized the items as “leading to

       guilty” which the post-conviction court determined was “a fair

       characterization” and “permissible argument,” given that Campbell was not

       excluded from any of the items. Trial Tr. at 1363; Appellant’s App. at 122.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 11 of 16
[21]   Second, even if the PowerPoint Slide constituted prosecutorial misconduct as

       Campbell claims, Campbell has not shown prejudice. The PowerPoint Slide

       was one of over seventy shown to the jury in an eight-day trial, and it did not

       accompany the jurors into the jury room during deliberations. During trial,

       Ormes had stressed the existence of an alternative suspect, namely Campbell’s

       brother Tommy5, and noted that Black could not confirm whether some hair

       belonged to Campbell or his brother. Ormes thoroughly cross-examined Black,

       including concerning primary and secondary transfer of hair, and he brought

       out issues regarding instances of contamination of DNA items in the case.

       Based on the record before us, we cannot say that Campbell was prejudiced by

       Ormes’s failure to object to the PowerPoint Slide.


[22]   Third, Ormes’s testimony at the post-conviction hearing suggested that his

       decision not to object during closing argument to the PowerPoint Slide was one

       of strategy. At the post-conviction hearing, Ormes explained that, at trial, he

       objected to the prosecutor’s description of Item 5A as being “a major of

       [Hogue] and a minor of defendant,” on the basis that it mischaracterized the

       evidence. Trial Tr. at 1360. Although the trial court overruled the objection,

       ultimately the prosecutor corrected and clarified her characterization in

       rebuttal. Ormes testified that he did not object to the PowerPoint Slide because




       5
         Ronnie Anglin’s wife, Judy, testified that she saw Tommy and Donny at her house on the morning of June
       5, that Tommy’s shirt had a brown stain on it, and that she later saw the two of them walking away down the
       railroad tracks carrying bags, and not to be seen again, until Donny was apprehended. Tommy was never
       apprehended or seen again, and the investigators never had any of Tommy’s DNA to test.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017          Page 12 of 16
       it would have been another objection during closing argument, which may have

       made him “look bad” in the eyes of the jury. PCR Tr. at 19. Ormes noted that

       “[i]t’s a call” as to whether to interpose such objections during closing which

       often are not sustained, because the trial court rules that “it’s argument.” Id. at

       19-20.


[23]   As we have recognized, counsel is given “significant deference in choosing a

       strategy which, at the time and under the circumstances, he or she deems best.”

       Benefield, 945 N.E.2d at 799 (quoting Potter v. State, 684 N.E.2d 1127, 1133 (Ind.

       1997)). ‘“[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.’” Id. (quoting 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. Our Supreme Court has observed, “A decision to not

       object to evidence when the objection may be more damaging than the evidence

       is within the wide range of professionally competent assistance.” Stevens v.

       State, 770 N.E.2d 739, 752 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).


[24]   In this case, the post-conviction court determined that the PowerPoint Slide and

       accompanying commentary were not prosecutorial misconduct, and it was not

       ineffective assistance not to object to it. We find that Campbell has failed to

       show that “the evidence as a whole leads unerringly and unmistakably to a

       conclusion opposite that reached by the post-conviction court.” Kubsch, 934

       N.E.2d at 1144.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 13 of 16
                                            II. Appellate Counsel

[25]   Campbell contends that his appellate counsel, Bates, provided ineffective

       assistance. “The standard for gauging appellate counsel’s performance is the

       same as that for trial counsel.” McKnight v. State, 1 N.E.3d 193, 204 (Ind. Ct.

       App. 2013) (citing Ward v. State, 969 N.E.2d 46, 75 (Ind. 2012)). Ineffective

       assistance of appellate counsel claims generally fall into three basic categories:

       (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present

       issues well. Gallien v. State, 19 N.E.3d 303, 311 (Ind. Ct. App. 2014), trans.

       denied. Regarding a claim that counsel was ineffective in failing to raise an issue

       on appeal thus resulting in waiver for collateral review, judicial scrutiny is

       highly deferential, and the defendant must overcome the strongest presumption

       of adequate assistance. McKnight, 1 N.E.3d at 204.


[26]   Here, Bates asserted on direct appeal, among other issues, that the prosecutor

       committed misconduct when, in closing argument, she stated that Campbell’s

       brother, Tommy, was handicapped, inferring that he could not have been the

       person who murdered Hogue. In this appeal, Campbell maintains that “[a]

       much stronger argument would [have been] that the prosecutor, in the critical

       period of closing argument, misconstrued the evidence [in the PowerPoint

       Slide], attempting to make the State’s case against Campbell stronger than it

       actually was.” Appellant’s Br. at 21. Campbell claims that his appellate counsel

       rendered ineffective assistance “by raising the issue of [the] description of his

       brother as handicapped instead of arguing the fundamental error of

       overemphasizing key pieces of DNA evidence[.]” Reply Br. at 9.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 14 of 16
[27]   We employ a two-part test to evaluate “waiver of issue” claims: (1) whether the

       unraised issues are significant and obvious from the face of the record; and (2)

       whether the unraised issues are “clearly stronger” than the raised issues. Henley

       v. State, 881 N.E.2d 639, 645 (Ind. 2008). If the analysis under this test

       demonstrates deficient performance, then we examine whether, the issues that

       appellate counsel failed to raise would have been clearly more likely to result in

       reversal or an order for a new trial. Gallien, 19 N.E.3d at 307. “Counsel’s

       performance is rarely found ineffective when the issue is [counsel’s] failure to

       raise a claim on direct appeal.” Sanders v. State, 764 N.E.2d 706, 714 (Ind. Ct.

       App. 2002), trans. denied, cert. denied, 537 U.S. 916 (2002). One reason for this is

       that the decision of what issues to raise is one of the most important strategic

       decisions to be made by appellate counsel. McKnight, 1 N.E.3d at 204.


[28]   In this case, we cannot say that a claim regarding the PowerPoint Slide was

       “clearly stronger” than the claims that Bates pursued on direct appeal, nor was

       this unraised issue “clearly more likely to result in reversal or an order for new

       trial.” Henley, 881 N.E.2d at 649 (quoting Bieghler v. State, 690 N.E.2d 188, 194

       (Ind. 1997), cert. denied, 525 U.S. 1021 (1998)). Campbell’s theory at trial was

       not only that the State could not prove that he murdered Hogue, but also that

       his brother Tommy may have been the person who killed Hogue. It was

       reasonable strategy for Bates to assert the claim on direct appeal that the State

       committed prosecutorial misconduct when it incorrectly represented Tommy as

       being handicapped and, by inference, unable to commit the crime, when part of

       Campbell’s theory of defense was that Tommy may have done it.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 15 of 16
[29]   The post-conviction court determined that the PowerPoint Slide was a fair

       comment on the evidence and that appellate counsel was not ineffective for not

       raising the issue “as there was little chance of prevailing.” Appellant’s App. at

       124. Campbell has not demonstrated that the evidence is without conflict and

       leads only to a conclusion opposite that of the post-conviction court. The post-

       conviction court did not err in denying Campbell’s petition.


[30]   Affirmed.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-PC-2328 | June 28, 2017   Page 16 of 16
