      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                          Apr 20 2015, 9:47 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Joel Rowley                                               Gregory F. Zoeller
      Michigan City, Indiana                                    Attorney General of Indiana
                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Joel Rowley,                                              April 20, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                49A05-1408-PC-413
              v.                                                Appeal from the Marion Superior
                                                                Court.
                                                                The Honorable Marc T. Rothenberg,
      State of Indiana,                                         Judge.
      Appellee-Respondent.                                      The Honorable Amy J. Barbar,
                                                                Magistrate.
                                                                Cause No. 49G02-1003-PC-017433




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Joel Rowley appeals from a negative judgment entered when the post-

      conviction court denied his petition for post-conviction relief. A jury convicted

      Rowley of murder and Rowley pleaded guilty to the habitual offender
      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015        Page 1 of 20
      enhancement. He argues that he received ineffective assistance of trial counsel

      and direct appeal counsel. We affirm.


                                                     Issues
[2]   Rowley presents several issues for our review, which we restate as the following

      broader issues, addressed with more specificity below:

              I.       Whether the post-conviction court failed to address one of
                       the issues raised in Rowley’s petition for post-conviction
                       relief.
              II.      Whether Rowley received ineffective assistance of trial
                       counsel.
              III.     Whether Rowley received ineffective assistance of
                       appellate counsel.


                               Facts and Procedural History
[3]   The facts supporting Rowley’s conviction for murder were set forth in our

      memorandum decision on direct appeal. See Rowley v. State, 49A04-1102-CR-

      34, 952 N.E.2d 889 (Ind. Ct. App. August 26, 2011), trans. denied. Those facts

      are as follows:


              In the early morning hours of March 5, 2010, Rowley and some
              of his acquaintances were involved in a bar fight in Indianapolis.
              Rowley left the altercation and went to his van, but instead of
              entering his van he went back into the fray and shot Leon Pepper
              in the back. Rowley then walked back to his van and drove
              away. Pepper died before emergency personnel could arrive.
      Slip op. p. 1.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 2 of 20
[4]   At trial, Rowley tendered a self defense instruction as noted in our opinion on

      his direct appeal.


              The defense of self-defense is defined by law as follows:
              A. A person is justified in using reasonable force against another
              person to protect himself or a third person from what he
              reasonably believes to be the imminent use of unlawful force.
              However, a person is justified in using deadly force only if he
              reasonably believes that that force is necessary to prevent serious
              bodily injury to himself or a third person or the commission of a
              forcible felony. No person in this State shall be placed in legal
              jeopardy of any kind whatsoever for protecting himself, his
              family or a third person by reasonable means necessary.
              B. Notwithstanding the above, a person is not justified in using
              force if:
              1. the person is committing or is escaping after the commission of
              a crime[;]
              2. the person provokes unlawful action by another person with
              intent to cause bodily injury to the other person; or
              3. the person has entered into combat with another person or is
              the initial aggressor unless the person withdraws from the
              encounter and communicates to the other person the intent to do
              so and the other person nevertheless continues or threatens to
              continue unlawful action[.]
              The State has the burden of disproving this defense beyond a
              reasonable doubt.
              Appellant’s App. at 170. The trial court accepted Rowley’s
              tendered instruction as the court’s final instruction number four.
              Id. at 156. The jury found Rowley guilty as charged and the trial
              court entered its judgment of conviction and sentence
              accordingly.
      Id.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 3 of 20
[5]   On direct appeal, Rowley challenged the adequacy of the self defense

      instruction. Id. We affirmed Rowley’s conviction after concluding that the

      error, if any, was invited error because Rowley’s counsel had tendered the

      challenged instruction. Id.


[6]   Rowley filed a petition for post-conviction relief raising claims of ineffective

      assistance of trial counsel. With respect to trial counsel, Rowley alleged that his

      counsel was ineffective for failing to include in the self defense instruction

      “standpoint of the defendant” language and for failing to incorporate that in the

      closing argument at trial. He also alleged trial counsel was ineffective for failing

      to interview a witness, Officer Derrick Hannon, and failing to call him as a

      witness as trial. He also claimed that trial counsel was ineffective for failing to

      advise him or his friends to surrender the gun used in the shooting to the police

      department or the prosecutor’s office.


[7]   With respect to appellate counsel, Rowley alleged ineffective assistance for

      failing to include a challenge to the trial court’s ruling precluding Rowley from

      presenting testimony about the victim’s reputation for carrying a gun.


[8]   Evidentiary hearings were held on May 22, 2013, October 23, 2013, and

      November 6, 2013. The post-conviction court issued an order including

      findings of fact and conclusions of law ultimately denying Rowley’s petition for

      post-conviction relief on July 10, 2014. Rowley now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 4 of 20
                                    Discussion and Decision
         Standard of Review for Post-Conviction Relief Proceedings
[9]    “The petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence.” Campbell v. State, 19

       N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction

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

       judgment.” Id. at 274. “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 by the post-conviction

       court.” Id. “Further, the post-conviction court in this case made findings of

       fact and conclusions of law in accordance with Indiana Post-Conviction Rule

       1(6).” Id. “Although we do not defer to the post-conviction court’s legal

       conclusions, ‘[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) (internal quotation omitted)).


                     Standard of Review for Assistance of Counsel
[10]   Rowley raises issues involving the assistance of both trial and appellate counsel.

       “The standard of review for claims of ineffective assistance of appellate counsel

       is the same as for trial counsel in that the defendant must show appellate

       counsel was deficient in his or her performance and that the deficiency resulted

       in prejudice.” Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). “When


       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 5 of 20
       evaluating an ineffective assistance of counsel claim, 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).” Id. “To satisfy the first prong, ‘the defendant must show

       deficient performance: representation that fell below an objective standard of

       reasonableness, committing errors so serious that the defendant did not have

       the ‘counsel’ guaranteed by the Sixth Amendment.’” Id. (quoting McCary v.

       State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88)).

       “To satisfy the second prong, ‘the defendant must show prejudice: a reasonable

       probability (i.e. a probability sufficient to undermine confidence in the

       outcome) that, but for counsel’s errors, the result of the proceeding would have

       been different.’” Id. (quoting McCary, 761 N.E.2d at 392 (citing Strickland, 466

       U.S. at 694)). If our review can dispose of an ineffective assistance claim on the

       prejudice prong, we need not address whether counsel’s performance was

       deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). “There is a strong

       presumption that counsel rendered adequate service.” Bethea v. State, 983

       N.E.2d 1134, 1139 (Ind. 2013).


                           I. Post-Conviction Court Omission
[11]   Rowley claims that the post-conviction court failed to address an issue raised by

       Rowley in his petition for post-conviction relief. He alleged ineffective

       assistance of trial counsel for failing to interview Officer Derrick Hannon and

       for failing to call Officer Hannon as a witness at trial.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 6 of 20
[12]   Indiana Post-Conviction Rule 1(6) explicitly requires that post-conviction

       courts make “specific findings of fact and conclusions of law on all issues

       presented . . . .” Where the post-conviction court fails to enter findings of fact

       and conclusions of law on an issue presented in a petition for post-conviction

       relief, remand for the entry of findings and conclusions on that issue is

       appropriate. Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999). This is so,

       because “[t]he principal purpose of findings of fact ‘is to have the record show

       the basis of the trial court’s decision so that on review the appellate court may

       more readily understand the former’s view of the controversy.’” Id. (quoting

       Love v. State, 257 Ind. 57, 59, 272 N.E?.2d 456, 458 (1971) (quoting 3 William

       F. Harvey, Indiana Practice 426 (1970))). “Findings of fact must be ‘sufficient to

       enable this Court to dispose of the issues upon appeal.’” Id. (quoting Taylor v.

       State, 472 N.E.2d 891, 892 (Ind. 1985)).


[13]   Here, the post-conviction court failed to address the issue in its order. Rowley

       correctly notes this error in his statement of the issues, but fails to present any

       argument on the topic in his brief. “Failure to present a cogent argument for

       such an issue operates as a waiver of that issue on appeal.” Bieghler v. State, 481

       N.E.2d 78, 89 (Ind. 1985). “Errors alleged by defendant but not presented and

       argued in the argument section of [the] defendant’s brief are waived.” Guardiola

       v. State, 268 Ind. 404, 406, 375 N.E.2d 1105, 1107 (1978). “It is the

       responsibility of the defendant to support his contentions with appropriate

       citations to the record as well as to legal authorities. Without such assistance,




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 7 of 20
       [a court on review] cannot determine the merits of his claim and will consider it

       waived.” Bieghler, 481 N.E.2d at 89.


[14]   “Nevertheless, an appellate court may affirm a trial court’s judgment on any

       theory supported by the evidence.” Dowdell, 720 N.E.2d at 1152. Therefore,

       we will review the record and consider the merits of Rowley’s claim in our

       discussion of the performance of his trial counsel.


                     II. Ineffective Assistance of Trial Counsel
                                    A. Self Defense Instruction
[15]   Rowley argues that his trial counsel was ineffective by failing to tender a self

       defense instruction that highlighted the requirement that when evaluating a self

       defense claim the evidence should be viewed from the perspective or standpoint

       of the defendant. In conjunction with that argument, he claims that trial

       counsel should have highlighted that subjective component in closing

       argument.


[16]   Here, the self defense instruction set forth above essentially tracks the pertinent

       language of the self defense statute. Ind. Code §35-41-3-2 (2006). In

       Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013), the Supreme Court re-

       emphasized the holding that the “self-defense statute requires both a subjective

       belief that force was necessary to prevent serious bodily injury and that a

       reasonable person under the circumstances would have such an actual belief.”

       Therefore, self defense comprises both a subjective and objective component.

       Id. In considering “standpoint of the defendant” language, the Supreme Court

       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 8 of 20
       has emphasized that “the jury should examine circumstances as they appeared

       to the defendant. But while the defendant’s own account is critically relevant,

       the stand is still the reasonableness of the belief of the defendant.” Id.

       “Focusing on the ‘standpoint of the defendant’ means at least two things: (1)

       the trier of fact must consider the circumstances as they appeared to the

       defendant, rather than to the victim or anyone else; and (2) the defendant’s own

       account, although not required to be believed, is critically relevant testimony.”

       Id. at 350.


[17]   Here, if trial counsel had tendered an instruction focusing solely on the

       defendant’s subjective belief, the instruction, while correct, would not have

       been a complete statement of the law. Rowley did not present the post-

       conviction court with an instruction he believes should have been given.

       Therefore, it is impossible to evaluate whether the instruction he favors is

       accurate and appropriate.


[18]   Further, the instruction that was given did instruct the jury that the standard to

       be used was what Rowley reasonably believed at the time of the infliction of the

       injury. The post-conviction court noted that the tendered instruction was

       nearly identical to the instruction the trial court intended to give, but did not

       because Rowley’s was better and more appropriate. This was so because

       Rowley’s instruction added language regarding the protection of third persons,

       which was at the heart of Rowley’s defense.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 9 of 20
[19]   Rowley’s trial counsel testified that he believed that during closing argument he

       did highlight the “standpoint of the defendant.” The record reflects that trial

       counsel argued to the jury that Rowley acted reasonably and was justified in

       shooting the victim because he believed the victim was going to shoot his

       friend. Therefore, trial counsel did effectively inform the jury that the proper

       perspective from which to evaluate the evidence was the defendant’s viewpoint.

       Rowley’s counsel correctly argued the law to the jury. See id. at 348-49.

       Rowley has not met his burden of establishing that he was denied effective

       assistance of trial counsel.


                                      B. Failure to Investigate
[20]   Rowley maintains that his trial counsel was ineffective by failing to interview

       Officer Hannon and by failing to call him as a witness at trial. Rowley argues

       that had trial counsel interviewed Officer Hannon he would have secured

       testimony conflicting with the State’s presentation of how Rowley’s jogging suit

       was preserved, and that Rowley was intoxicated at the time of his arrest and

       subsequent statement to police. Rowley claims that his trial counsel should

       have used the intoxication evidence to suppress Rowley’s statement to police in

       which he claimed not to be the shooter. That statement, which Rowley hoped

       to characterize as involuntary due to his intoxication, was inconsistent with

       Rowley’s claim of self defense.


[21]   The Supreme Court has explained appellate review of claims alleging a failure

       to investigate as follows:


       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 10 of 20
               With the benefit of hindsight, a defendant can always point to
               some rock left unturned to argue counsel should have
               investigated further. The benchmark for judging any claim of
               ineffectiveness must be whether counsel’s conduct so
               undermined the proper functioning of the adversarial process that
               it deprived the defendant of a fair trial. Strickland, 466 U.S. at
               686, 104 S. Ct. 2052. Strickland does not require counsel to
               investigate every conceivable line of mitigating evidence no
               matter how unlikely the effort would be to assist the defendant at
               sentencing. Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527,
               156 L. Ed. 2d 471 (2003). This would interfere with the
               constitutionally protected independence of counsel at the heart of
               Strickland. Id. Rather, we review a particular decision not to
               investigate by looking at whether counsel’s action was reasonable
               in light of all the circumstances. Id. at 521-22, 123 S. Ct. 2527.
               In other words, counsel has a duty to make a reasonable
               investigation or to make a reasonable decision that the particular
               investigation is unnecessary. Id. at 521, 123 S. Ct. 2527. A
               strategic choice not to present mitigating evidence made after
               thorough investigation of law and relevant facts is virtually
               unchallengeable, but a strategic choice made after less than
               complete investigation is challengeable to the extent that
               reasonable professional judgment did not support the limitations
               on the investigation. Id. Thus, the Court’s principal concern is
               not whether counsel should have presented more in mitigation
               but whether the investigation supporting their decision not to
               introduce mitigating evidence was itself reasonable. Id. at 523,
               123 S. Ct. 2527.
       Ritchie v. State, 875 N.E.2d 706, 719-20 (Ind. 2007).


[22]   Rowley contended that Officer Hannon, the officer to whom he surrendered,

       informed him that the police would want his jacket and his van as part of their

       investigation, and that he told Officer Hannon where he would leave his entire

       jogging suit worn by him at the time of the crime and where his van would be

       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 11 of 20
       located. Rowley claimed that he told trial counsel what he had done with the

       jogging suit and his van and asked counsel to contact Officer Hannon. Rowley

       stated that trial counsel informed him that he was unable to locate Officer

       Hannon. At the evidentiary hearing, trial counsel testified that he did not recall

       that there was an issue at trial regarding Rowley’s disposition of his clothing,

       and stated that he did not recall speaking with Rowley about his clothing.


[23]   Officer Hannon testified during the evidentiary hearing. He stated that he

       attempted to avoid discussing the case with Rowley while transporting him to

       the police station because he was not the investigating officer. Further, he

       testified that he could not recall advising Rowley about what to do with the

       clothing he had been wearing at the time of the crime.


[24]   Other than Rowley’s own testimony at the evidentiary hearing, there was no

       evidence presented demonstrating that an interview of Officer Hannon would

       have produced any relevant testimony about the clothing Rowley wore that

       would have been any benefit to his defense. Furthermore, Rowley did not meet

       his burden of establishing that had trial counsel interviewed Officer Hannon the

       outcome of his trial would have been any different.


[25]   Similarly, Rowley has not met his burden of presenting evidence to support his

       claim that had trial counsel interviewed Officer Hannon he would have gleaned

       evidence to support a motion to suppress Rowley’s statement to police. Rowley

       argues now that trial counsel should have moved to suppress his statement that

       he was not the shooter on the ground that it was involuntary due to Rowley’s


       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 12 of 20
       intoxication. That statement was at odds with the trial strategy that he acted in

       self defense. “To prevail on an ineffective assistance of counsel claim based

       upon counsel’s failure to file motions on a defendant’s behalf, the defendant

       must demonstrate that such motions would have been successful.” Wales v.

       State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), trans. denied.


[26]   Here, Rowley claimed that his statement to police was involuntary because he

       was intoxicated at the time. “Statements are inadmissible due to intoxication

       only when an accused is intoxicated to the point that he is unaware of what he

       is saying.” Wilkes v. State, 917 N.E.2d 675, 680 (Ind. 2009). “Intoxication to a

       lesser degree goes only to the weight to be given the statement.” Id.


[27]   Rowley testified at the evidentiary hearing that he drank two or three double

       shots of Absolut Vodka and a Corona, and that by the time he left the bar with

       Officer Hannon, he was feeling the effects of his alcohol consumption. Officer

       Hannon testified that although he allowed Rowley to finish his drink before

       escorting him to the police station for questioning, he did not observe any signs

       that Rowley was intoxicated.


[28]   “Whether a witness’ testimony at a post-conviction hearing is worthy of credit

       is a factual determination to be made by the trial judge who has the opportunity

       to see and hear the witness testify.” State v. McCraney, 719 N.E.2d 1187, 1191

       (Ind. 1999). “It is not within an appellate courts province to replace the trial

       court’s assessment of credibility with its own.” Id. Since the post-conviction




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 13 of 20
       court denied Rowley’s petition, a reasonable inference is that the post-

       conviction court found Officer Hannon’s testimony more credible.


[29]   Rowley’s testimony did not establish that he was so intoxicated that he did not

       know what he was saying when he was interviewed by police officers. In

       addition, his trial testimony did not indicate that he was claiming that he was

       intoxicated when speaking with police officers. Therefore, Rowley has not

       established that a motion to suppress his statement to police as involuntary due

       to intoxication would have been granted if raised. Consequently, Rowley has

       not established that trial counsel’s failure to interview Officer Hannon and then

       call him as a witness at trial prejudiced his defense. We find no error here.


                                         C. Failure to Advise
[30]   Rowley claims that his trial counsel was ineffective by failing to advise him to

       personally turn over the murder weapon or to have relatives do so on his behalf.

       Because the prejudice part of this test is dispositive of this issue, we do not

       address the alleged deficiency in trial counsel’s performance.


[31]   Rowley testified that he had discussed turning over the murder weapon to

       authorities with his trial counsel. He claimed that trial counsel informed him

       that if the State did not request it, there was no reason to turn over the weapon.

       Trial counsel testified that he had no recollection of a conversation with Rowley

       about the weapon.


[32]   Had counsel advised Rowley to surrender the gun, this conduct would not have

       refuted the State’s contention that Rowley’s conduct—leaving the scene of the
       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 14 of 20
       murder rather than staying and immediately turning the gun over to police—

       constituted evidence of Rowley’s guilty conscience, instead of the righteous

       defense of a friend. If Rowley had surrendered the weapon to authorities after

       consulting with his attorney, the State could have argued that he fled the scene

       of the murder with the murder weapon and only surrendered it upon the advice

       of counsel.


[33]   This would not have altered the outcome of Rowley’s trial. The State

       introduced a video tape showing Rowling shooting the unarmed victim in the

       back. Rowley has not demonstrated how trial counsel’s failure to advise him to

       turn the gun over to police prior to trial would have produced a different

       outcome at trial. We find no prejudice here.


                III. Ineffective Assistance of Appellate Counsel
[34]   Rowley claims that he received ineffective assistance of appellate counsel. “As

       for appellate counsel, ineffective assistance 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.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013)

       (quoting Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). Here, Rowley’s

       allegation falls under the second category, waiver of issues.


[35]   “To show that counsel was ineffective for failing to raise an issue on appeal, the

       defendant must overcome the strongest presumption of adequate assistance,

       and judicial scrutiny is highly deferential.” Manzano v. State, 12 N.E.3d 321,



       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 15 of 20
       329 (Ind. Ct. App. 2014) (citing Reed v. State, 856 N.E.2d 1189, 1195 (Ind.

       2006)), trans. denied. Furthermore,


               To evaluate the performance prong when counsel failed to raise
               issues upon appeal, we apply the following test: (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. If the analysis under this test demonstrates
               deficient performance, then we examine whether “the issues
               which . . . appellate counsel failed to raise, would have been
               clearly more likely to result in reversal or an order for a new
               trial.” Ineffective assistance is very rarely found in cases where a
               defendant asserts that appellate counsel failed to raise an issue on
               direct appeal because the decision of what issues to raise is one of
               the most important strategic decisions to be made by appellate
               counsel.
       Id. at 329-30. (internal quotes omitted).


[36]   Rowley claims that his appellate counsel was ineffective for failing to present

       any argument challenging the trial court’s ruling before trial that Rowley could

       not present evidence of the victim’s reputation for carrying a gun. Rowley’s

       direct appeal counsel testified at one of the evidentiary hearings that she did not

       recall having a strategic reason for not raising the issue on direct appeal.


[37]   First, we note that the issue was not preserved for direct appellate review. “A

       pre-trial hearing or a motion in limine is appropriate to determine the

       admissibility of evidence outside of the jury’s hearing.” Mitchell v. State, 742

       N.E.2d 953, 956 (Ind. 2001). “However, in order to preserve an error for

       appellate review, a party must do more than challenge the ruling on a motion in

       limine.” Id. “[T]o raise the question of error, the evidence must be offered at

       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 16 of 20
       trial to give the trial court an opportunity to rule on its admissibility at that

       time.” Id. (quoting Tyra v. State, 506 N.E.2d 1100, 1103 (citations omitted)). A

       defendant who fails to offer the evidence excluded at the hearing prior to trial

       has not preserved the error for appellate review. Id.


[38]   “To reverse a trial court’s decision to exclude evidence, there must have been

       error by the court that affected the defendant’s substantial rights and the

       defendant must have made an offer of proof or the evidence must have been

       clear from the context.” Harman v. State, 4 N.E.3d 209, 215 (Ind. Ct. App.

       2014), trans. denied. “A party traditionally makes an offer to prove after the trial

       court has sustained an objection to the admission of the party’s evidence.” Id.

       at 216. “However, it may also be made before the trial court’s ruling on an

       objection in order to aid in the admissibility ruling.” Id. Consequently, because

       Rowley did not attempt to offer proof of the handgun reputation evidence, the

       error was not preserved for appellate review. “Appellate counsel cannot be

       faulted for failing to raise what would have been a meritless claim.” Overstreet v.

       State, 877 N.E.2d 144, 167 (Ind. 2007).


[39]   A fundamental error argument was unavailable to appellate counsel.

       “Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to ‘make a fair trial impossible.’” Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748,

       756 (Ind. 2002)). “In other words, to establish fundamental error, the

       defendant must show that, under the circumstances, the trial judge erred in not

       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 17 of 20
       sua sponte raising the issue because alleged errors (a) ‘constitute clearly blatant

       violations of basic and elementary principles of due process’ and (b) ‘present an

       undeniable and substantial potential for harm.’” Id. “The element of such

       harm is not established by the fact of ultimate conviction but rather ‘depends

       upon whether [the defendant’s] right to a fair trial was detrimentally affected by

       the denial of procedural opportunities for the ascertainment of truth to which he

       otherwise would have been entitled.’” Id. Our Supreme Court has stressed

       “that ‘[a] finding of fundamental error essentially means that the trial judge

       erred . . . by not acting when he or she should have. . . .’” Id. (quoting Whiting

       v. State, 969 N.E.2d 24, 34 (Ind. 2012)). “Fundamental error is meant to permit

       appellate courts a means to correct the most egregious and blatant trial errors

       that otherwise would have been procedurally barred, not to provide a second

       bite at the apple for defense counsel who ignorantly, carelessly, or strategically

       fail to preserve an error.” Id.


[40]   Rowley has failed to argue or demonstrate that the exclusion of this evidence

       would have constituted fundamental error. Therefore, Rowley has not met his

       burden of demonstrating that this unpreserved issue is clearly stronger than the

       issue raised in his direct appeal or that its admission would likely have

       produced a different result at trial. It is reasonable to conclude that appellate

       counsel was reasonable in not raising this claim in Rowley’s direct

       appeal.


[41]   A strategic decision not to present the issue finds support in case law holding

       that “[w]here character evidence is introduced to show the victim’s violent

       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 18 of 20
       nature and to show that the defendant had reason to fear the victim, a

       foundation is required before that evidence is admissible. That foundation

       consists of a showing that the defendant had knowledge of the specific bad acts

       communicated to him prior to the [crime].” Norris v. State, 498 N.E.2d 1203,

       1205 (Ind. 1986). “Indiana’s general rule prohibits proof of the character of the

       deceased.” Phillips v. State, 550 N.E.2d 1290, 1297 (Ind. 1990), abrogated on

       other grounds by Fry v. State, 990 N.E.2d 429 (Ind. 2013)). “Where a self-defense

       claim is raised, however, there is an exception.” Id. “Evidence of specific bad

       acts by the victim is then admissible to show that the victim had a violent

       character and that the defendant had reason to fear the victim, but it is

       incumbent on the defendant to make a foundational showing that he had

       knowledge of those specific bad acts prior to the [crime] before such evidence

       may be admitted.” Id.


[42]   Rowley has not presented evidence at trial or at his post-conviction proceeding

       that at the time of the murder he had any knowledge that the victim had a

       reputation for carrying a gun or a reputation for violence. The record reflects

       that Rowley had never met the victim and did not know anything about him

       prior to the night of the shooting. Therefore, Rowley could not have met the

       foundational prerequisite for the admission of that evidence. Thus, the

       evidence was irrelevant to Rowley’s claim of self defense and was properly

       excluded by the trial court.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 19 of 20
                                                 Conclusion
[43]   Rowley has not met his burden of establishing that the post-conviction court’s

       omission warrants a remand of Rowley’s case, that his trial counsel was

       ineffective, or that his appellate counsel was ineffective. In light of the

       foregoing, we affirm the judgment of the post-conviction court.


[44]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1408-PC-413 | April 20, 2015   Page 20 of 20
