Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                         Mar 28 2013, 8:48 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

WILLIAM BAXTER                                      GREGORY F. ZOELLER
Carlisle, Indiana                                   Attorney General of Indiana

                                                    GEORGE P. SHERMAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM BAXTER,                                     )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 49A04-1205-PC-248
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                         The Honorable Steven J. Rubick, Magistrate
                             Cause No. 49G01-0810-PC-249149


                                          March 28, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
       William Baxter was convicted of Class A felony rape, two counts of Class B felony

criminal deviate conduct, Class C felony robbery, and Class A misdemeanor battery, for

which he received an aggregate sentence of fifty-four years of incarceration. In this post-

conviction proceeding, Baxter contends that he received ineffective assistance of trial and

appellate counsel in several respects. Concluding that Baxter has failed to establish that he

received ineffective assistance of trial and appellate counsel, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       The facts underlying Baxter’s convictions were related by this court in its disposition

of Baxter’s direct appeal:

               In the early morning hours of September 29, 2007, T.R. was walking
       down a street in Indianapolis when she came into contact with three men:
       Baxter, Dion Stewart, and a third person known only as “Slim.” Tr. p. 63. The
       three men began walking with T.R., and Stewart eventually offered some
       cocaine to T.R., which she sniffed off of his driver’s license. T.R. then
       accompanied the three men to an abandoned house, although she was
       expecting to go to one of the three men’s house. Stewart and T.R. began
       kissing at the side of the house, and then he removed his penis from his pants
       and asked T.R. to touch it. T.R. refused and said she wanted to go home.
               When T.R. said this, the three men accused her of stealing their “stuff”
       (i.e., cocaine). Id. at 71. T.R. began walking away, and one of the men
       directed her to a purported “shortcut” to her residence down an alley. When
       she reached the alley, someone said, “Now,” and Stewart put his arm around
       T.R.’s neck from behind and began choking her. Id. at 78. Baxter and Stewart
       then began hitting her about the head with closed fists, trying to knock her out.
       They then pulled her pants down, while Slim stood watch. Slim forced T.R. to
       perform oral sex on him while either Baxter or Stewart had vaginal intercourse
       with her. Baxter and Stewart then alternated forcing T.R. to submit to oral,
       vaginal, and anal intercourse with them. After about thirty minutes, the three
       men began to leave and took T.R.’s cell phone and keys from her pants pocket.
        When T.R. protested that they were taking her house keys, Stewart punched
       her in the mouth. The punch caused a laceration to T.R.’s lip that required
       plastic surgery and left a scar. T.R. was able to summon help after the three
       men left. When taken to the hospital, T.R. was given morphine for her pain.

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Baxter v. State, No. 49A02-0905-CR-461, slip op. at 1 (Ind. Ct. App. Feb. 16, 2010). When

DNA samples collected from T.R. were submitted to the CODIS database, two of the

samples were found to match Baxter and Stewart. A cheek swab collected from Baxter

confirmed the CODIS match.

              The State charged Baxter with two counts of Class A felony rape, four
       counts of Class A felony criminal deviate conduct, one count of Class A felony
       robbery, one count of Class C felony battery, and one count of Class D felony
       theft. After a jury trial held on April 15-16, 2009, Baxter was found guilty as
       charged on all counts. At the sentencing hearing on May 1, 2009, the trial
       court entered judgments of conviction for the following: one count of Class A
       felony rape, two counts of Class B felony criminal deviate conduct, one count
       of Class C felony robbery, and one count of Class A misdemeanor battery.

Id. Stewart and Baxter were tried together after the trial court denied Baxter’s motion to

sever. On May 1, 2009, the trial court sentenced Baxter to an aggregate sentence of fifty-four

years of incarceration. Following direct appeal, in which Baxter challenged only his rape

conviction, this court affirmed the judgment of the trial court. Id. at 3. In 2010, Baxter filed

a petition for post-conviction relief (“PCR”), and he filed an amended petition on February

17, 2011. On April 20, 2012, the post-conviction court denied Baxter’s PCR petition in full.

                                       DISCUSSION

                                  PCR Standard of Review

       Our standard for reviewing the denial of a PCR petition is well-settled:

              In reviewing the judgment of a post-conviction court, appellate courts
       consider only the evidence and reasonable inferences supporting its judgment.
       The post-conviction court is the sole judge of the evidence and the credibility
       of the witnesses. To prevail on appeal from denial of post-conviction relief,
       the petitioner must show that the evidence as a whole leads unerringly and
       unmistakably to a conclusion opposite to that reached by the post-conviction

                                               3
       court.… Only where the evidence is without conflict and leads to but one
       conclusion, and the post-conviction court has reached the opposite conclusion,
       will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and quotations

omitted).

            I. Whether Baxter Received Ineffective Assistance of Trial Counsel

       We review claims of ineffective assistance of counsel based upon the principles

enunciated in Strickland v. Washington, 466 U.S. 668 (1984):

       [A] claimant must demonstrate that counsel’s performance fell below an
       objective standard of reasonableness based on prevailing professional norms,
       and that the deficient performance resulted in prejudice. Prejudice occurs
       when the defendant demonstrates that “there is a reasonable probability that,
       but for counsel’s unprofessional errors, the result of the proceeding would
       have been different.” A reasonable probability arises when there is a
       “probability sufficient to undermine confidence in the outcome.”

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

Because an inability to satisfy either prong of this test is fatal to an ineffective assistance

claim, this court need not even evaluate counsel’s performance if the petitioner suffered no

prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

                A. Failure to Object to Alleged Prosecutorial Misconduct

       Baxter contends that his trial counsel was ineffective for failing to object to alleged

prosecutorial misconduct. Although Baxter makes several allegations of misconduct in his

Appellant’s Brief, the only three that were also made below concern three statements the

prosecutor made during closing: “that makes her more credible,” “these guys are credible

over her,” and “He’s not credible.” Tr. pp. 396, 398, 400. Baxter contends that these


                                              4
statements are impermissible statements regarding witness credibility. It is well-settled,

however, that “a prosecutor may comment on the credibility of the witnesses as long as the

assertions are based on reasons which arise from the evidence.” Lopez v. State, 527 N.E.2d

1119, 1127 (Ind. 1988).

       Our review of the record reveals no misconduct. The prosecutor made the first

statement while referring to prior statements that were inconsistent with T.R.’s trial

testimony, arguing that her acknowledgment that she had lied made her more credible now.

The second statement appears to be a rhetorical question, with the prosecutor asking if the

defendants were more credible than the victim in light of her testimony. The third statement

was made while the prosecutor was explaining why the defendants’ version of events was not

credible. In other words, all three statements were based on evidence in the record, not the

prosecutor’s personal opinions regarding credibility, and were therefore acceptable. Baxter’s

trial counsel was not ineffective for failing to object on the basis of prosecutorial misconduct.

                   B. Failure to Object to Certain Pieces of Evidence

       Baxter contends that his trial counsel was ineffective for failing to object to the

admission of several pieces of physical evidence, namely items of clothing collected from

T.R. by Wishard Health Service Registered Nurse Laura Maloy and DNA collected from

Baxter by Indianapolis Metropolitan Police Detective Daniel Green in order to confirm the

CODIS match. Baxter contends that the clothing was insufficiently identified and lacked a

proper chain of custody. Baxter contends that the DNA lacked a proper chain of custody and

was not collected in the manner set forth in Indiana Code sections 10-13-6-12 and 9-30-6-6.


                                               5
In other words, Baxter contends that the State failed to lay proper foundations for the

evidence.

       Baxter contends that no witness testified that the clothing collected from T.R. was

connected to the crimes. Nurse Maloy testified, however, that she collected the clothing from

T.R. during the sexual assault examination, giving rise to the reasonable inference that T.R.

was wearing the items during the attack. In any event, Baxter presented no evidence that

Nurse Maloy or T.R. would have failed to identify the clothing as connected to the crime if

they had been asked to do so. As for the chain of custody claims regarding the clothing,

Baxter has failed to carry his burden of establishing that the witnesses in question could not

have accounted for the evidence if they had been asked to do so.

       Regarding the DNA sample, Baxter’s chain-of-custody argument suffers from the

same fatal flaw as his argument regarding the clothing: there is no evidence that Detective

Green could not have accounted for the DNA sample if he had been asked to do so. Finally,

as for Baxter’s statutory arguments, it is clear that neither Indiana Code sections 9-30-6-6 or

10-13-6-12 apply to the cheek swab Detective Green conducted in this case. Section 9-30-6-

6 governs the collection of samples pursuant to the Implied Consent chapter of the Traffic

Code, and section 10-13-6-12 governs the collection of samples for the Indiana DNA data

base. Additionally, as with Baxter’s other evidentiary arguments, even assuming that the

State did not satisfy some foundational requirement, there is no evidence that it could not

have done so if required. Because Baxter’s foundational arguments amount to nothing more

than pure speculation that the State could not have laid the proper foundation if required, he


                                              6
has failed to establish ineffective assistance in this regard.

                          C. Failure to Properly Prepare for Trial

       Baxter contends that his trial counsel failed to adequately investigate potential

witnesses or review the DNA evidence. Baxter, however, has not presented any evidence

indicating what further investigation would have uncovered or how it might have helped his

case. Baxter presented no evidence regarding who these allegedly helpful witnesses were or

what their testimony would have been. Baxter also failed to present any evidence regarding

what further review of the State’s DNA evidence might have revealed or how it could have

helped him.

       [E]stablishing [failure to investigate as a] ground for ineffective assistance …
       require[s] going beyond the trial record to show what the investigation, if
       undertaken, would have produced. This is necessary because success on the
       prejudice prong of an ineffectiveness claim requires a showing of a reasonable
       probability of affecting the result.

Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998). Baxter has failed to show what further

investigation would have produced and so has failed to establish ineffective assistance of trial

counsel in this regard.

                                D. Failure to Move to Sever

       Baxter contends that his trial counsel was ineffective for failing to move to sever his

trial from Stewart’s. As Baxter concedes, however, his trial counsel did, in fact, move to

sever, a motion the trial court denied. If the underlying issue of severance is to entitle Baxter

to relief, it will not be on the basis of ineffective assistance of trial counsel.

      II. Whether Baxter Received Ineffective Assistance of Appellate Counsel


                                                7
       We review claims of ineffective assistance of appellate counsel using the same
       standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v.
       State, 729 N.E.2d 102, 106 (Ind. 2000). The defendant must show that
       appellate counsel was deficient in his performance and that the deficiency
       resulted in prejudice. Id. Ineffective assistance claims at the appellate level of
       proceedings generally fall into three basic categories: (1) denial of access to
       an appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler
       v. State, 690 N.E.2d 188, 193-95 (Ind. 1997).

Fisher v. State, 810 N.E.2d 674, 676-77 (Ind. 2004). Baxter’s claim of ineffective assistance

of appellate counsel falls into the second category.

       Baxter contends that his appellate counsel was ineffective for failing to challenge the

trial court’s denial of his motion to sever on direct appeal.

       [U]pon motion of the defendant or the prosecutor, the court shall order a
       separate trial of defendants whenever the court determines that a separate trial
       is necessary to protect a defendant’s right to a speedy trial or is appropriate to
       promote a fair determination of the guilt or innocence of a defendant.

Ind. Code § 35-34-1-11(b).

              Defendants have no absolute right to a separate trial or severance, but
       they may ask the trial judge to exercise her discretion to grant such a motion.
       An abuse of discretion occurs when a court denies a defendant’s properly filed
       motion for separate trials and the parties’ defenses are mutually antagonistic to
       such a degree that acceptance of one party’s defense precludes the acquittal of
       the other. A defendant is not, however, entitled to a separate trial merely
       because a co-defendant implicates that defendant.

Rouster v. State, 705 N.E.2d 999, 1004 (Ind. 1999) (citations omitted).

       Baxter contends that a motion for severance should have been granted here because

the jury was prevented from hearing testimony from him about Stewart’s participation in the

crimes. Baxter has failed to present any evidence to support this claim. Although Baxter

testified at his PCR hearing, he did not testify regarding what his testimony about Stewart’s


                                               8
participation would have been. Baxter also contends that the joint trial prevented Stewart

from testifying, which, he claims, would have helped him. Stewart, however, did not testify

at the PCR hearing, so there is no evidence regarding what he might have testified to at

Baxter’s individual trial or that it would have had a reasonable probability of affecting the

outcome. Baxter has failed to establish that he received ineffective assistance of appellate

counsel.

       The judgment of the post-conviction court is affirmed.

RILEY, J., and BROWN, J., concur.




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