MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Nov 04 2019, 8:45 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Marco L. Webster                                        Curtis T. Hill, Jr.
Carlisle, Indiana                                       Attorney General of Indiana

                                                        Justin F. Roebel
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marco L. Webster,                                       November 4, 2019
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        19A-PC-189
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        49G06-1509-PC-34504



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019                   Page 1 of 20
                                       Statement of the Case
[1]   Marco L. Webster appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Webster raises nine issues for our review, which we

      consolidate and restate as the following two issues:


              1.      Whether the trial court abused its discretion when it failed
                      to investigate a conflict between Webster and his trial
                      counsel and when it denied his trial counsel’s motion to
                      withdraw his appearance.

              2.      Whether the post-conviction court clearly erred when it
                      determined that he had not received ineffective assistance
                      from his trial counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts underlying Webster’s robbery convictions were stated by this Court in

      his direct appeal:


              On New Year’s Eve of 2012, around 12:30 p.m., construction
              worker Randall Crouch (Crouch) had completed a job on the
              northwest side of Indianapolis, Indiana, and was loading tools
              into his 2004 Ford Econoline work van. A black male wearing a
              brown coat, a hoodie, and a mask over his face approached
              Crouch, pointed a semi-automatic pistol at his face, and ordered
              him to unlock the van and start the ignition. Crouch complied,
              and after the robber had driven out of sight, he reported the
              carjacking to the Indianapolis Metropolitan Police Department
              (IMPD), describing the van as half blue and half white, with
              ladders on the roof rack.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 2 of 20
        Later that day, shortly before 3:00 p.m., a man armed with a
        semi-automatic handgun walked into the International Parts
        Store, located at 5360 N. Tacoma Avenue in Indianapolis, and
        yelled for everyone to get down on the floor. At that time, three
        employees were in the building: Todd Norris (Norris), Brian
        Smith (Smith), and Eric Thompson (Thompson). At the
        gunman’s command, Smith removed the cash from the register,
        and all three gave him the cash from their wallets. After the
        gunman ran out of the store, Smith called 9-1-1 and reported that
        the store had been robbed at gunpoint by “a black male wearing a
        blue and white plaid jacket with a dark hoodie.”


        Minutes later, a black male “wearing dark pants, . . . a bluish-
        black plaid jacket with a hoodie on, and with a scarf on his
        face[,]” entered the Harris Tire & Automotive Service, located
        across the street from the International Parts Store at 5425 N.
        Keystone Avenue. The man aimed a semi-automatic handgun at
        an employee, Danny Stumm (Stumm), and instructed him to
        empty the cash drawer. As Stumm was unlocking the register,
        the robber noticed a customer, Kenneth Rush (Rush), and
        demanded his wallet. When the perpetrator detected movement
        by another employee, Joshua Scholl (Scholl), he immediately
        turned and shot Scholl in the hip. Scholl retreated to the garage
        bays, where the company’s owner, William Harris (Harris), was
        servicing a vehicle. Scholl, in the midst of calling 9-1-1, alerted
        Harris to the fact that he had been shot. Due to the noise of the
        compressor, Harris was unaware of the ongoing robbery. When
        Harris opened the door to the showroom to investigate, the
        robber fired a second shot in Harris’ direction. Although the
        bullet missed Harris, shrapnel hit him on the side of his face.
        The gunman exited the store, and Harris and Scholl observed
        through the window as he entered the driver-side door of a Ford
        service van, half white and half blue, with ladders on top. Harris
        noted that the license plate number was 1562534.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 3 of 20
        Within minutes of the robberies, IMPD officers responded to
        both locations and commenced investigations. The witnesses
        were all separated for interviews, and Scholl was transported to
        the hospital. In general, they described the suspect as a black
        male in his twenties or thirties and of “average” or “medium”
        height and build. The witnesses also confirmed that the suspect
        was wearing a very distinctive blue and white plaid coat, dark
        pants, a dark hoodie that was pulled over his head, and a dark-
        colored scarf that left only his eyes exposed. Norris, Thompson,
        and Stumm described the scarf as having a camouflage pattern.
        In addition, while ordered to lie on the ground, Norris and
        Thompson observed that the suspect wore brand new tennis
        shoes that “were black and what I remember distinctly was the
        very clean white edges, around the bottom.” Thompson
        identified the brand of shoes as “Jordans” and further noted that
        the suspect had facial hair “around his nose.”


        On that same afternoon, IMPD Officer Gary Toms (Officer
        Toms) was working an off-duty security job at Inverness
        Apartments, located on the northwest side of Indianapolis, about
        a fifteen-to-twenty-minute drive from the International Parts
        Store and the Harris Tire & Automotive Service. At
        approximately 3:15 p.m., a blue and white Ford Econoline van
        pulled into the parking lot. When it passed by Officer Toms’
        squad car, he observed that the driver, later identified as Webster,
        was the sole occupant of the van. Immediately recognizing the
        van as the one described in the carjacking reported earlier that
        day, Officer Toms radioed for assistance. Officer Michael Roach
        (Officer Roach) was in the area and arrived moments later. They
        followed the van’s route to the rear of the apartment complex
        and observed Webster walking on the sidewalk, wearing a dark-
        colored hoodie and carrying a “plaid flannel looking coat or
        jacket.” When they instructed him to stop, Webster took off
        running.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 4 of 20
        As the officers pursued him on foot, they saw Webster throw the
        coat and several other items down. Officer Roach apprehended
        Webster, placed him in handcuffs, and escorted him to his squad
        car. Retracing Webster’s steps, the officers found a black nine-
        millimeter handgun and $682 in cash strewn throughout the
        snow, along with the blue and white plaid jacket. Inside the
        jacket pocket was a camouflage-patterned scarf and Rush’s
        wallet. The van was registered to Crouch and had the license
        plate number 1562534.


        In the midst of his investigation at the International Parts Store,
        Detective Brent Hendricks (Detective Hendricks) received a
        report that Webster had been stopped with a van matching the
        one described by the Harris Tire & Automotive Service
        employees. Detective Hendricks told the witnesses that IMPD
        “had a person stopped that I wanted them to look at. . . . I
        specifically informed them that it may or may not be the person
        that robbed them but I did want them to take a look.” Between
        4:00 p.m. and 5:15 p.m., Norris, Smith, Thompson, Harris,
        Stumm, and Rush were separately transported to Inverness
        Apartments in order to identify whether Webster was the robbery
        suspect.


        Because Webster had discarded the plaid coat when he fled,
        Officer Roach held the coat up near Webster for the first witness
        and subsequently draped it over Webster’s shoulders for the rest.
        Each of the six witnesses unequivocally identified the jacket as
        being the same one worn by the robber. In addition to the jacket
        and hoodie, Harris immediately identified the van as the one
        used by the robber, and Rush noted that Webster’s “build and
        everything seemed to be the same.” Norris also indicated that
        Webster’s “shoes were the dead giveaway.” Finally, Thompson
        stated that he “was a hundred percent positive that the clothes
        and the shoes were the same. And I could tell from the upper
        half of [Webster’s] face that it was the same facial features as the
        guy who came and robbed us.”

Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 5 of 20
      Webster v. State, No. 49A02-14-4-CR-253, 2015 WL 849475, at *1-3 (Ind. Ct.

      App. Feb. 26, 2015) (citations omitted), trans. denied.


[4]   The State charged Webster with one count of carjacking, as a Class B felony

      (Count 1); four counts of criminal confinement, as Class B felonies (Counts 2

      through 5); five counts of robbery, as Class B felonies (Counts 6 through 9 and

      11); one count of battery, as a Class C felony (Count 10); and one count of

      unlawful possession of a firearm by a serious violent felon, as a Class B felony

      (Count 12). Thereafter, the State amended the information and additionally

      charged Webster with one count of robbery, as a Class A felony (Count 13). 1

      The State also alleged that Webster was a habitual offender.


[5]   On February 24 and 25, 2014, the trial court held a bifurcated jury trial. At the

      conclusion of the trial, the jury found Webster not guilty of Counts 1 and 2, but

      guilty of Counts 3 through 11 and 13. During the second phase of the trial, the

      State dismissed Count 12, and Webster stipulated to the habitual offender

      charge. Based on double jeopardy concerns, the trial court merged Counts 3, 4,

      and 5 into Counts 6, 7, and 8, and it merged Counts 9 and 10 into Count 13.

      Accordingly, the trial court entered judgment of conviction on Counts 6, 7, 8,

      11, and 13 and adjudicated Webster a habitual offender. The trial court then




      1
        Counts 6, 7, 8, 9, and 11 alleged that Webster had robbed Smith, Thompson, Norris, Stumm, and Rush,
      respectively, while armed with a deadly weapon. Count 13 alleged that Webster had robbed Stumm while
      armed with a deadly weapon and that that robbery resulted in serious bodily injury to Scholl.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019             Page 6 of 20
      sentenced Webster to an aggregate sentence of eighty-five years in the

      Department of Correction.


[6]   On direct appeal, Webster raised two issues for our review. He first asserted

      that “the trial court abused its discretion in admitting evidence of the show-up

      identifications.” Webster, 2015 WL 849475 at *4. Webster also asserted that

      “the State presented insufficient evidence to support his conviction.” Id. at *5.

      We affirmed Webster’s convictions.


[7]   Thereafter, Webster, pro se, filed his amended petition for post-conviction relief.

      In that petition, Webster raised fifteen claims of ineffective assistance of trial

      counsel and two claims of ineffective assistance of appellate counsel. He

      further asserted that the trial court had abused its discretion for three reasons.

      Following a hearing, the post-conviction court entered findings of fact and

      conclusions of law. As to Webster’s multiple claims of ineffective assistance of

      counsel, the post-conviction court concluded that Webster had not

      demonstrated “any error” on the part of his trial counsel. Appellant’s App. Vol.

      II at 27. Similarly, the post-conviction court concluded that “Webster’s

      appellate counsel was not ineffective.” Id. at 28. And as to Webster’s claims

      that the trial court had abused its discretion, the post-conviction court

      concluded that those were freestanding issues that Webster could not raise in

      his petition for post-conviction relief because they were either available to

      Webster on direct appeal but not raised or raised on appeal and decided against

      him. Accordingly, the court denied Webster’s petition. This appeal ensued.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 7 of 20
                                     Discussion and Decision
[8]   Webster appeals the post-conviction court’s denial of his petition for post-

      conviction relief. As our Supreme Court has stated:


              “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. In order to prevail on an appeal from the
              denial of post-conviction relief, a petitioner must show that the
              evidence leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case entered findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). 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.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (internal quotation omitted).


      Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).


[9]   In particular, Webster alleges that the trial court abused its discretion when it

      failed to investigate a conflict between Webster and his trial counsel and when

      it denied trial counsel’s motion to withdraw his appearance. He further asserts

      that the post-conviction court erred when it determined that he was not denied

      the effective assistance of trial counsel.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 8 of 20
                             Issue One: Abuse of Discretion by Trial Court

[10]   Webster first contends that the trial court abused its discretion when it failed to

       investigate a conflict between him and his trial counsel and when it denied his

       trial counsel’s motion to withdraw his appearance. 2 However, “[p]ost-

       conviction procedures do not afford a petitioner with a super-appeal, and not all

       issues are available.” Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).

       Rather, “[p]ost-conviction procedures provide defendants the opportunity to

       raise issues that were not known at the time of the original trial or were not

       available to defendants on direct appeal.” Bunch v. State, 778 N.E.2d 1285,

       1289 (Ind. 2002). “It has long been held that claims available on direct appeal

       but not presented are not available for post-conviction review.” Id. Here, both

       of Webster’s claims that the trial court had abused its discretion were known

       and available to Webster but not raised on direct appeal. Accordingly,

       Webster’s claims of trial court error are not available for post-conviction review.

       The post-conviction court properly denied those freestanding claims of error.


                                 Issue Two: Effectiveness of Trial Counsel

[11]   Webster next contends that the post-conviction court clearly erred when it

       determined that he did not receive ineffective assistance from his trial counsel.

       As our Supreme Court has explained:




       2
         In his petition for post-conviction relief, Webster also asserted that the trial court abused its discretion
       when it admitted as evidence testimony that identified clothing worn by the robber. However, Webster does
       not raise that issue on appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019                   Page 9 of 20
               When 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). See Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). 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.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). 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. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). The “[f]ailure to satisfy either

       prong will cause the claim to fail.” French v. State, 778 N.E.2d 816, 824 (Ind.

       2002). Further, “[t]here is a strong presumption that counsel rendered adequate

       assistance and made all significant decisions in the exercise of reasonable

       professional judgment.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018).

       “Counsel is afforded considerable discretion in choosing strategy and tactics

       and these decisions are entitled to deferential review.” Id.


[12]   On appeal, Webster asserts that his trial counsel was ineffective because his trial

       counsel: (1) failed to seek a dismissal of all charges against him; (2) failed to

       seek dismissal of Count 9; (3) failed to request a lesser-included jury instruction;

       (4) failed to object to the use of a photograph as evidence; (5) failed to object to

       the State’s ballistic evidence; and (6) elicited an in-court identification of

       Webster. We address each argument in turn.
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 10 of 20
                                              1) Motion to Dismiss

[13]   Webster first contends that his trial counsel was ineffective for failing to file a

       motion to dismiss all of the charges against him. In order to prevail on a claim

       of ineffective assistance of counsel due to a failure to file a motion to dismiss,

       “the defendant must show a reasonable probability that the motion to dismiss

       would have been granted if made.” Garrett v. State, 992 N.E.2d 710, 723 (Ind.

       2013). Here, Webster specifically contends that his trial counsel was ineffective

       for failing to file a motion to dismiss all of the charges against him because he

       was not represented by counsel at the initial hearing. Webster maintains that,

       had he been represented by counsel at the initial hearing, his attorney at that

       hearing “could have challenged” several inaccuracies in the probable cause

       affidavit. Appellant’s Br. at 38.


[14]   Webster is correct that a “defendant’s right to counsel arises at any point during

       a criminal proceeding in which the absence of counsel would erode the

       defendant’s right to a fair trial.” Hopper v. State, 957 N.E.2d 613, 616 (Ind.

       2011). This includes any critical stage in which incrimination may occur or

       where the opportunity for effective defense must be seized or be foregone. Id.

       However, “[a]n initial hearing conducted under Indiana’s statutory scheme is

       not a critical stage of the criminal proceeding requiring the presence of

       counsel.” Id. As Webster did not have the right to counsel at his initial

       hearing, he has not shown that there is a reasonably probability that a motion to

       dismiss the charges against him based on the lack of representation at that stage

       would have been granted. Webster has not demonstrated that he received

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 11 of 20
       ineffective assistance from his trial counsel for failing to file a motion to dismiss

       the charges. We affirm the post-conviction court’s judgment on this issue.


                                              2) Multiplicitous Charges

[15]   Webster next asserts that his trial counsel was ineffective because he did not

       seek to have a “multiplicitous indictment” dismissed. Appellant’s Br. at 21.

       Again, in order to prevail on this claim, Webster must show a reasonable

       probability that the motion to dismiss would have been granted if made.

       Garrett, 992 N.E.2d 723. Webster’s argument on this issue is not clear, but it

       appears as though he asserts that his trial counsel should have moved to dismiss

       Count 9, robbery, as a Class B felony, because that count was duplicative of

       Count 13, robbery, as a Class A felony since both counts were based on the

       robbery of Stumm. However, our Supreme Court has held that, “a defendant

       may be tried in the same proceeding for multiple offenses, including greater and

       lesser offenses[.]” Griffin v. State, 717 N.E.2d 73, 78. As Webster could be tried

       in the same proceeding for both robbery, as a Class A felony, and robbery, as a

       Class B felony, in the same proceeding, he has not shown that a motion to

       dismiss the Class B felony robbery charge would have been granted. 3 Webster’s

       counsel was not ineffective for failing to file a motion to dismiss Count 9, and

       we affirm the post-conviction court on this issue.




       3
         Further, even if we assume for the sake of argument that a reasonable attorney would have filed a motion
       to dismiss Count 9, Webster has not shown that the result of the proceedings against him would have been
       different as the trial court did not enter judgment of conviction against Webster on Count 9.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019               Page 12 of 20
                                                3) Jury Instruction

[16]   Webster also asserts that the post-conviction court erred when it determined

       that he did not receive ineffective assistance from his trial counsel based on his

       counsel’s failure to request that the jury be instructed that Count 9, robbery, as a

       Class B felony, was a lesser included offense to Count 13, robbery, as a Class A

       felony. To prevail on this claim, Webster has the burden to show that counsel

       unreasonably failed to request a proper instruction and that Webster was

       prejudiced by the failure to request the instruction. See Potter v. State, 684

       N.E.2d 1127, 1134 (Ind. 1997). Further, as our Supreme Court has held:


               When a defendant requests an instruction covering a lesser-
               included offense, a trial court applies the three-part analysis set
               forth in Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995). The
               first two parts require the trial court to determine whether the
               offense is either inherently or factually included in the charged
               offense. If so, the trial court must determine whether there is a
               serious evidentiary dispute regarding any element that
               distinguishes the two offenses. Wright held that if, in view of this
               dispute, a jury could conclude that the lesser offense was
               committed but not the greater, then it is reversible error for a trial
               court not to give an instruction, when requested, on the
               inherently or factually included lesser offense.


       Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002) (quotation marks and

       citations omitted).


[17]   At the time of the offenses, robbery was defined as a person who knowingly or

       intentionally takes property from another person or from the presence of

       another person by using or threatening the use of force or by putting any person

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 13 of 20
       in fear. Ind. Code § 35-42-5-1 (2012). The offense was a Class B felony if it was

       committed while armed with a deadly weapon. Id. And the offense was a

       Class A felony if it resulted in serious bodily injury to any person other than the

       defendant. Id. On the facts of this case, the State charged Webster with

       robbery, as a Class B felony, based on the allegation that Webster had robbed

       Stumm while armed with a deadly weapon. And the State charged Webster

       with robbery, as a Class A felony, based on the allegation that Webster had

       robbed Stumm while armed with a deadly weapon and that the robbery resulted

       in serious bodily injury to Scholl.


[18]   Here, the distinguishing element between the two offenses is the serious bodily

       injury to Scholl. See Hogan v. State, 966 N.E.2d 738, 749 (Ind. Ct. App. 2012).

       Accordingly, the Class B felony robbery charge is factually included in the Class

       A felony charge, and Webster would therefore have been entitled to a lesser

       included jury instruction only if there was a serious evidentiary dispute

       concerning the element of serious bodily injury. See id.


[19]   However, there was no dispute at Webster’s trial that Scholl was shot in the hip

       and that the person who shot him was the same person who had robbed

       Stumm. Accordingly, there was no evidentiary dispute regarding the element

       that distinguishes the two robbery charges. In other words, the jury could have

       either concluded that Webster had not robbed Stumm and therefore did not

       shoot Scholl or that Webster had robbed Stumm and shot Scholl. But the jury

       could not have found that Webster had robbed Stumm but not shot Scholl. As

       such, the jury could not have concluded that Webster had committed the lesser

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 14 of 20
       offense of robbery while armed with a deadly weapon but not the greater

       offense of robbery that resulted in serious bodily injury. See Wilson, 65 N.E.2d

       at 1271. Because there is no serious evidentiary dispute regarding any element

       that distinguished the two offenses, Webster cannot prevail on his claim that his

       attorney was ineffective for failing to request a lesser included jury instruction.

       We affirm the post-conviction court’s judgment on this issue.


                                            4) Photographic Evidence

[20]   Webster next contends that his trial counsel was ineffective because he did not

       object to the State’s use of a photograph as evidence. To prove ineffective

       assistance of counsel due to the failure to object, “the petitioner must establish

       that an objection would have been sustained and that the petitioner was

       prejudiced by the failure to object.” Ivy v. State, 98 N.E.3d 107, 111 (Ind. Ct.

       App. 2018). Webster maintains that his trial counsel should have objected

       when the State showed a photograph of the Harris Tire & Automotive Service

       (“Harris Tire”) robbery to a witness of the International Parts Store robbery

       because that photograph was evidence of a prior bad act in violation of Indiana

       Evidence Rule 404(b).


[21]   Indiana Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or

       other act is not admissible to prove a person’s character in order to show that on

       a particular occasion the person acted in accordance with the character.” But

       that rule further provides that the evidence “may be admissible for another

       purpose, such as proving motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake or lack of accident.” Ind. Evidence
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 15 of 20
       Rule 404(b)(2). Here, it is clear that the State used the photograph of the Harris

       Tire robbery to establish the identity of the person who had robbed the

       International Parts Store. Accordingly, that evidence was admissible under

       Indiana Evidence Rule 404(b)(2). And because that evidence was admissible,

       any objection by his trial counsel would not have been sustained. Webster’s

       trial counsel was not ineffective for failing to object to the State’s use of that

       photograph, and we affirm the post-conviction court on this issue.


                                                 5) Ballistics Evidence

[22]   Webster also contends that he received ineffective assistance from his trial

       counsel when his trial counsel failed to object to the State’s ballistics evidence.

       Again, to prove that his counsel was ineffective for failing to object to evidence,

       Webster must demonstrate that the objection would have been sustained and

       that he was prejudiced by the failure to object. Ivy, 98 N.E.3d at 111.


[23]   On this issue, Webster first asserts that his trial counsel should have objected to

       the ballistics evidence that officers had collected because the evidence was

       “tainted” since an employee had cleaned up the crime scene before officers

       arrived. Appellant’s Br. at 24. However, Webster has not presented any

       evidence to support his assertion that any employee had cleaned up the crime

       scene prior to the arrival of officers. 4 Accordingly, Webster has not met his




       4
         In his brief on appeal, Webster claims that Drew Hall testified in a deposition that he had cleaned up blood
       off the floor. But Webster did not provide a copy of that deposition to the post-conviction court, nor has he
       provided a copy of that deposition in the record on appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019                 Page 16 of 20
       burden on appeal to demonstrate that the crime scene was compromised or that

       any evidence was tainted.


[24]   Next, Webster asserts that his trial counsel should have objected to the ballistics

       evidence because the State’s expert testified that he had been asked to examine

       two bullet fragments even though the officers had only collected one fragment

       from the crime scenes. Webster maintains that his attorney should have

       objected to that testimony because the second bullet fragment “was never

       documented anywhere” and because there “was no chain of custody.” Id. at

       34.


[25]   But even assuming for the sake of argument that a reasonable attorney would

       have objected on those grounds, Webster has not shown that he was prejudiced

       by his attorney’s failure to object. While the ballistics expert testified that he

       had been asked to examine two bullet fragments, the actual evidence admitted

       at trial only included one bullet fragment. See Trial Ex. at 34. Further, when

       the expert testified about the results of his examination, he only discussed one

       bullet fragment. And he testified that his findings regarding that fragment were

       “inconclusive” and that he was unable to determine if that fragment had been

       fired from the firearm that officers had found near Webster at the time of his

       arrest. Trial Tr. Vol. II at 204. Because Webster has not demonstrated that he

       was prejudiced by his trial counsel’s failure to object to the ballistics expert’s

       testimony regarding two bullet fragments, Webster’s contention that his counsel

       was ineffective for failing to object must fail. We affirm the post-conviction

       court on this issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 17 of 20
                                           6) Identification Testimony

[26]   Finally, Webster contends that the post-conviction court erred when it

       concluded that he had not received ineffective assistance from his trial counsel

       when his trial counsel elicited an in-court identification of Webster.

       Specifically, Webster asserts that his attorney was ineffective when he asked

       Smith, a State’s witness, whether the person who had robbed him was in the

       courtroom. Webster contends that that question by his attorney, which his

       attorney asked despite the fact that the trial court had granted his motion to

       suppress any in-court identifications of Webster, “jeopardize[d] the defense” by

       allowing jurors to hear positive identifications that were “tainted by police

       officers” at the show-up identification. Appellant’s Br. at 36, 37.


[27]   On this issue, the post-conviction court found that Webster’s trial counsel

       elicited the in-court identification of Webster as a matter of trial strategy. In

       particular, the post-conviction court found that Webster’s trial counsel had

       made a “tactical decision” to ask Smith to make an in-court identification of

       Webster, which decision allowed trial counsel to get Smith to “ultimately

       concede[] that he could not be certain of the identification.” Appellant’s App.

       Vol. II at 24. We agree with the post-conviction court.


[28]   At Webster’s trial, the defense strategy was to challenge the State’s evidence

       that identified Webster as the person who had robbed the stores. Webster’s trial

       counsel asked Smith to identify Webster as a part of that strategy. During the

       hearing on Webster’s petition for post-conviction relief, Webster’s trial counsel

       testified that he had asked Smith to identify Webster in order to demonstrate to
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 18 of 20
       the jury that Smith could only identify Webster “based on the show up[.]” Tr.

       Vol. II at 28. Indeed, after trial counsel asked Smith to identify Webster, trial

       counsel further asked Smith if he was “certain.” Trial Tr. Vol. II at 2. In

       response, Smith conceded that he “can’t be certain it’s the man.” Id. at 3.


[29]   It is apparent that Webster’s trial counsel elicited that identification from Smith

       because counsel wanted the jury to hear that Smith could not positively identify

       Webster as the person who had robbed him. Those questions are consistent

       with trial counsel’s strategy to challenge the State’s allegation that Webster had

       committed the robberies. Further in support of his trial strategy, Webster’s trial

       counsel also asked Norris if he saw the person who had robbed him in court. In

       response, Norris stated: “No.” Id. at 18.


[30]   Webster’s trial counsel made a strategic decision to elicit an in-court

       identification of Webster by Smith in order to show the jury that his

       identification was not definitive and was based only on who he had seen at the

       show-up identification instead of who he had seen during the robberies. And

       Webster’s trial counsel made a strategic decision to ask Norris if he saw the

       robber in court in order to show the jury that Norris could not identify Webster

       as the person who had robbed him. We cannot say that Webster’s trial

       counsel’s strategy to elicit an in-court identification from Smith and to attempt

       to elicit an in-court identification from Norris was “‘so deficient or

       unreasonable as to fall outside the objective standard of reasonableness.’” State

       v. Miller, 771 N.E.2d 1284, 1288 (Ind. Ct. App. 2002) (quoting Potter v. State,



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 19 of 20
       684 N.E.2d 1127, 1133 (Ind. 1997)). We affirm the post-conviction court’s

       judgment on this issue.


                                                   Conclusion

[31]   In sum, the post-conviction court properly denied Webster’s freestanding claims

       that the trial court had abused its discretion because those claims are not

       available for post-conviction review. And the post-conviction court did not

       clearly err when it determined that Webster had not received ineffective

       assistance from his trial counsel. We affirm the post-conviction court’s denial

       of Webster’s petition for post-conviction relief.


[32]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-189 | November 4, 2019   Page 20 of 20
