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                SUPREME COURT OF ARKANSAS
                                      No.   CR-15-857


   ALVIN T. FUKUNAGA                            Opinion Delivered April   14, 2016
                               APPELLANT
                                                APPEAL FROM THE PULASKI
   V.                                           COUNTY CIRCUIT COURT
                                                [NO. 60CR-12-284]
   STATE OF ARKANSAS
                                 APPELLEE HONORABLE BARRY SIMS, JUDGE
                                                AFFIRMED.


                        RHONDA K. WOOD, Associate Justice

        After a jury trial, Alvin Fukunaga was convicted of rape and sentenced to ten years

in prison. He contends that he received ineffective assistance of counsel when his defense

attorney failed to object to testimony that allegedly bolstered the victim’s credibility. The

circuit court rejected this claim. We affirm the circuit court’s judgment.

        In March 2012, Alvin Fukunaga was charged with rape. His step-granddaughter had

alleged that Fukunaga started sexually abusing her when she was twelve years old. At trial,

the victim, then twenty-three, repeated these allegations and also testified that Fukunaga

had raped her multiple times when she was sixteen. The victim also identified a mole on

Fukunaga’s upper thigh, something she noticed in the course of the abuse.

        A sheriff’s deputy also testified. The deputy described, briefly, his experience

investigating “hundreds” of sexual-abuse allegations. The deputy testified that it was “very,

very difficult for [the victims] to bring out what has occurred to them because it was very

traumatic to them.” The deputy stated that, in his experience, abuse victims sometimes
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disclose the abuse long after the fact for fear of breaking up a family unit. Finally, in response

to the prosecutor’s inquiry whether “someone who suffers sexual abuse has repressed or

they just bury deep down,” the deputy responded as follows:

       They do bury deep down. And, you know, during the interview process, I may
       mention something that will cause them to click and say, okay . . . you know what,
       that reminds me of something else. And so it depends on the interview also on how
       that is going. . . . My questions may cause them to recall something else that, you
       know, they have been held way deep down inside.

Fukunaga’s defense counsel never objected to this line of questioning. However, on cross-

examination, the deputy admitted that he was neither a psychologist nor an expert on “the

nature of memory.”

       The jury found Fukunaga guilty. On direct appeal, our court of appeals affirmed his

conviction. See Fukunaga v. State, 2014 Ark. App. 4. After the court of appeals issued its

opinion, Fukunaga filed a petition for postconviction relief at the circuit court. Fukunaga

argued that he received ineffective assistance of counsel because his defense counsel failed

to object to the deputy’s testimony. A hearing was held on the petition. There, defense

counsel testified that he thought the deputy’s testimony was admissible and, regardless, that

he could “neutralize it on cross-examination.” Counsel also noted that “as a general rule in

my trial practice I try not to object very much at all . . . if I can get the same result through

something other than an objection.”

       The circuit court issued a written order denying Fukunaga’s claim of ineffective

assistance of counsel. Among other things, the circuit court held that defense counsel’s

failure to object was based on trial strategy and that his performance was therefore not

deficient. Because this finding is not clearly erroneous, we affirm on this basis alone. See

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State v. Lacy, 2016 Ark. 38, at 4, ___ S.W.3d ___, ___ (“We do not reverse the . . . denial

of postconviction relief unless the circuit court’s findings are clearly erroneous.”).

       Under the two-prong standard from Strickland v. Washington, 466 U.S. 668 (1984), a

petitioner seeking postconviction relief must show that his counsel’s performance was

deficient and that the deficient performance resulted in prejudice. See Feuget v. State, 2015

Ark. 43, 454 S.W.3d 734. “There is a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance, and the petitioner has the burden of

overcoming that presumption by identifying the acts and omissions of counsel which, when

viewed from counsel’s perspective at the time of trial, could not have been the result of

reasonable professional judgment.” Id. at 4, 454 S.W.3d at 738. “Matters of trial strategy

and tactics, even if arguably improvident, fall within the realm of counsel’s professional

judgment and are not grounds for a finding of ineffective assistance of counsel.” Noel v.

State, 342 Ark. 35, 41–42, 26 S.W.3d 123, 127 (2000). In short, a matter of reasonable trial

strategy does not constitute deficient performance. See, e.g., State v. Fudge, 361 Ark. 412,

425, 206 S.W.3d 850, 860 (2005) (holding that counsel’s decision to not investigate certain

mitigating evidence was “within the wide range of reasonable professional assistance” and

was not deficient performance).

       Counsel testified during the postconviction hearing that his decision not to object to

the deputy’s testimony was based on trial strategy. He stated the following: “[R]egardless of

its admissibility I didn’t think it was damaging in any way that couldn’t be addressed on

cross-examination.” Indeed, at trial, counsel followed-up and addressed the issue on cross-

examination by having the deputy admit that he was neither a psychologist nor an expert in

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memory-retrieval; the deputy also admitted that some rape allegations were fabricated,

which advanced the defense’s theory of the case. Counsel further explained his general

preference, as a matter of trial strategy, to withhold objections on direct examination and

instead attack the testimony on cross-examination: “[R]ather than objecting in front of a

jury who wonders what sort of testimony I am scared of or trying to hide from them, I’d

much rather do that. I think the client is better served that way.” Counsel’s strategy was

within the realm of reasonable professional judgment.

       The deputy’s testimony, moreover, played a small role in the present case. Most of

his testimony was based on his own experience investigating sexual-abuse allegations. Even

beyond this, counsel pointed out on cross that the deputy was not an expert, so the jury had

no special reason to give his testimony undue credit. Cf. United States v. Rosales, 19 F.3d

763, 766 (1st Cir. 1994) (finding no plain error when expert witness bolstered victim’s

testimony while also noting that expert testimony could create prejudice due to its “aura of

special reliability and trustworthiness”).

       We note that this case is unlike Montgomery v. State, where we found ineffective

assistance after counsel failed to object to explicit bolstering testimony. 2014 Ark. 122.

There, the defendant was charged with raping a child. During the State’s case, the prosecutor

asked a social worker whether the victim’s allegations were “believable.” 2014 Ark. 122, at

4. The prosecutor also asked whether the victim’s allegations had been coerced by the

victim’s mother. Id. Counsel failed to object to either question. Id. Because the case “turned

on the credibility of the child victim,” we held that the defendant proved ineffective

assistance based on counsel’s failure to object. Id. at 7.

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       There are two key distinctions between this case and Montgomery. First, the State here

never asked the deputy whether the victim’s allegations were “believable” or to otherwise

assess the victim’s credibility; rather, the deputy simply reflected on his experience

investigating abuse allegations. Second, counsel in Montgomery never testified that his

decision to withhold objections was based on trial strategy; here, though, counsel withheld

an objection because he did not want the jury to think he was afraid of the deputy’s

testimony.

       In conclusion, we affirm the circuit court’s ruling that counsel’s failure to object was

based on trial strategy. Because we can affirm on this basis, we decline to address Fukunaga’s

argument that he suffered prejudice because “there is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.” Henington v. State, 2012 Ark. 181, at 5, 403 S.W.3d

55, 59 (citing Strickland, 466 U.S. at 697).

       Affirmed.

       WYNNE, J., concurs.

       ROBIN F. WYNNE, Justice, concurring. I agree with the majority’s decision to

affirm the denial of appellant’s petition for postconviction relief. I would, however, affirm

on a different basis than that relied on by the majority.

       The majority affirms the circuit court’s order denying the petition for postconviction

relief on the basis that the decision not to object to the deputy’s testimony was one of trial

strategy by appellant’s trial counsel. As recited by the majority, counsel testified at the

hearing on the petition that he did not object to the testimony at issue because he did not

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want the jury to think he was afraid of the deputy’s testimony. Decisions regarding trial

strategy must be based on reasonable professional judgement. See Stewart v. State, 2014 Ark.

419, 443 S.W.3d 538. I cannot accept that a decision not to object to testimony clearly

beyond the purview of a lay witness because counsel does not want to be seen as being

“afraid” of the testimony is a decision that springs from reasonable professional judgment.

Therefore, I would not affirm the trial court’s decision on the basis that the decision was

one of trial strategy.

       However, in addition to a showing of deficient performance, a petitioner must show

that counsel’s deficient performance prejudiced the defense, which requires showing that

counsel’s errors were so serious as to deprive the petitioner of a fair trial. See Adams v. State,

2013 Ark. 174, 427 S.W.3d 63. In doing so, the petitioner must show that there is a

reasonable probability that the fact-finder’s decision would have been different absent

counsel’s errors. Id. Here, appellant failed to demonstrate a reasonable probability that an

objection to the deputy’s testimony would have caused the jury to reach a different verdict,

in light of the other evidence presented by the State at trial. Thus, I would affirm the trial

court’s decision on the basis that appellant failed to demonstrate prejudice.

       Jeff Rosenzweig, for appellant.

       Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.




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