      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D),                                    Feb 27 2017, 9:02 am

      this Memorandum Decision shall not be                                          CLERK
      regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Curtis T. Hill, Jr.
      Public Defender of Indiana                               Attorney General of Indiana
      Kathleen Cleary                                          J.T. Whitehead
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ian J. Clark                                             February 27, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               43A03-1605-PC-970
              v.                                               Appeal from the Kosciusko Circuit
                                                               Court
      State of Indiana,                                        The Honorable Michael W. Reed,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               43C01-0705-FA-127



      Mathias, Judge.


[1]   Ian Clark (“Clark”) appeals the Kosciusko Circuit Court’s denial of his petition

      for post-conviction relief. Clark, who was convicted of murdering his


      Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017            Page 1 of 20
      girlfriend’s two-year old child, challenges the effectiveness of his trial and

      appellate counsel.

[2]   We affirm.


                                 Facts and Procedural History

[3]   The facts surrounding Clark’s murder conviction are taken from our supreme

      court’s resolution of Clark’s direct appeal:

              In May 2007 Ian J. Clark was living in Pierceton with his fiancée
              Matara Muchowicz and her daughter Samantha. Samantha
              typically stayed with a friend while Clark and Matara were at
              work, but Clark had been laid off at some point during the month
              and in an effort to save money Matara began leaving Samantha
              with Clark for the day.


              When Matara arrived home on May 25th, around 2 p.m., she
              found Clark lying on the couch with Samantha on his chest,
              naked and blue. Matara approached the couch and noticed blood
              on the blanket that was covering up Clark. After being
              questioned about the blood, Clark sat up and then fell and
              stumbled into the coffee table, dropping Samantha on the
              ground. Clark told Matara that Samantha was breathing. Matara
              tried to wake Samantha, but she was cold. Samantha's head was
              thrown back and she was gurgling. Matara took Samantha and
              went to call 911. Clark told Matara to put the phone down and
              that Samantha was “brain dead” and then lit a cigarette and
              turned on the television.


              Matara dialed 911, but Clark grabbed the phone out of her hand.
              Clark told Matara there was nothing wrong with Samantha and
              that she was breathing. He kept telling Matara that Samantha
              was fine. Matara told Clark they needed to call an ambulance.

      Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 2 of 20
        Clark continued to try to prevent Matara from calling 911. Clark
        took the phone from Matara and tried to drag her away from the
        phone. When Matara managed to dial 911 and ask the operator
        for help, Clark struck Matara in the back of the head with his fist.


        Matara managed to make a second call to 911. Matara wanted to
        learn CPR because Samantha was not breathing. The 911
        operators could hear Clark interrupt and disconnect the
        attempted calls. After completing the 911 call, Matara put a
        diaper on Samantha and went outside where she met a police
        officer.


        The Kosciusko County sheriff's deputy who had arrived on scene
        tried to revive Samantha until paramedics arrived. The deputy
        noticed Samantha suffered a split lip, was limp, her jaw was
        crushed, and she had bruises all over her body. Paramedics were
        unable to revive her. They observed that Samantha had bruises
        all over her body, her right jaw was swollen, black and blue, and
        she had blood around her mouth, and bruises on her chest area
        that resembled fingerprints. Later analysis put Samantha's time of
        death at 11 a.m. to 12 noon.


        The officers arrested Clark and transported him to the hospital
        with blood on his shirt. While waiting in an exam room with
        police, Clark told a detective that “I will f ...ing kick your ass. I
        will send the Hell’s Angels to kill you. F ... it. It’s only a C
        felony. I can beat this.”


        Police discovered diapers, tissues, a blanket, a shelf on the coffee
        table, a pillow and pajamas all stained red in the home. Police
        also discovered blood spatters near the sink and red spots near
        the door in the bathroom. They observed a hole in the bathroom
        wall, sixty-five inches from the floor, with bloodstains and brown
        hair embedded in it. The blood and hair found in the hole was
        Samantha’s. The blood on Clark's shirt was Samantha's.

Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 3 of 20
        The list of injuries was appalling. Before Samantha's death she
        suffered multiple contusions, lacerations, abrasions and or
        deformities to her mouth, ear, chin, forehead, eyes, neck, jaw,
        shoulders, cheeks, arms, ribs, chest, back, scapula, kidney areas,
        areas over vital organs, abdomen, arm pits, nipples, temple, nose,
        lips, wrists, hands, orbits, buttocks, and thigh; her ulna was
        broken, her wrist was broken, her lung was bruised, her jaw was
        broken or dislocated; she had a subdural hematoma, intra-
        abdominal wounds, including a torn colon, an atlanto-occipital
        dislocation (her head was “ripped off her neck,”—the ligaments
        were disrupted from the spinal column so that only “tissue and
        skin” held it to the body), and cerebral contusions or bruising of
        her brain.


        Samantha suffered at least twenty separate injuries, more than
        one of which would be lethal, and she was still alive when she
        sustained many of them. An emergency room doctor described
        Samantha's “fresh” injuries as the worst he had observed in
        twenty years. Neither one fall, nor multiple falls, nor multiple
        household accidents, could possibly have caused Samantha's
        injuries. The official cause of death was by multiple blunt force
        injuries and the official manner of death was ruled a homicide.


        The State charged Clark with murder. Clark withdrew his
        voluntary intoxication defense just before trial and withdrew his
        insanity defense during trial. After the jury found him guilty of
        murder, the State and Clark stipulated to the single charged
        aggravator: that the victim was less than twelve years of age. The
        jury recommended life without the possibility of parole, and the
        court sentenced Clark accordingly.


Clark v. State, 915 N.E.2d 126, 128-29 (Ind. 2009) (record citations omitted).

Clark’s conviction and sentence were affirmed on direct appeal.



Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 4 of 20
[4]   Thereafter, Clark filed a pro se petition for post-conviction relief. The petition

      was amended by counsel on August 10, 2015, and an evidentiary hearing was

      held in January 2016.


[5]   Clark’s trial counsel was not available to testify at the hearing because he is

      deceased. His appellate counsel was available and testified concerning the

      choice of issues raised on direct appeal. Appellate counsel considered whether

      to raise certain unpreserved issues on direct appeal by arguing fundamental

      error1 or whether to preserve the issue as one that might support a claim of

      ineffective assistance of counsel in a petition for post-conviction relief.


[6]   On April 6, 2016, the trial court denied Clark’s petition for post-conviction

      relief in an order containing detailed findings addressing Clark’s claims of

      ineffective trial and appellate counsel. The order provides in pertinent part:


               THE COURT FINDS the Defendant/Petitioner alleged that he
               received ineffective assistance of appellate counsel, stating the
               following specific allegations: a) Appellate counsel failed to raise
               the issue of the State’s amendment of the information for
               Murder, over objection of trial counsel, that occurred during the
               trial.; b) Appellate counsel failed to raise the issue of prejudice by
               the Defendant/Petitioner, as a result of the amendment of the
               information for murder during the trial, as it impacted his
               decision not to plead to a term of years prior to trial; and c)




      1
       In addition to appealing certain Rule 404(b) evidence admitted at trial, Clark’s appellate counsel
      unsuccessfully raised five claims of fundamental error. Id. at 132-33.

      Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017           Page 5 of 20
        Appellate counsel failed to adequately raise the issue of improper
        use of the term evil by the State during the trial.


                                                 ***


        THE COURT FINDS that appellate counsel conducted legal
        research of issues, read all of Defendant/Petitioner's letters, and
        ultimately selected what he believed were the strongest issues,
        reserving some issues for Defendant/Petitioner to raise in a post-
        conviction proceeding where he felt that the burden of proof
        would be more favorable to Defendant/Petitioner.


        THE COURT FINDS that appellate counsel considered the
        State’s amendment of the information during trial as a potential
        issue; and to that end, appellate counsel reviewed the relevant
        statutes, as well as case law pertaining to the issue, in addition
        his other aforementioned work.


        THE COURT FINDS that appellate counsel made a
        determination, based upon his understanding of the law and the
        facts of the case, that the issue of the amendment of the
        information was not stronger than the issues he ultimately raised
        on direct appeal.


        THE COURT FINDS that under the circumstances of this case
        the amendment of the information was an amendment of form
        and not substance.


        THE COURT FINDS that there is no probative evidence that
        had appellate counsel raised the issue of the amendment of the
        information, the outcome of the appeal would have been
        different.




Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 6 of 20
        THE COURT FINDS that the Defendant/Petitioner received
        notice of the statutory definition of murder, at least as early as
        February 25, 2008, when the Court provided counsel with the
        Court's Preliminary Instructions. The Court further finds that
        trial counsel had no objection to the Preliminary Instructions
        prior to the commencement of the trial.


        THE COURT FINDS that the amendment of the information
        did not change the Defendant/Petitioner's defense that the
        Defendant/Petitioner was guilty of reckless homicide and not
        murder. The Court further finds that trial counsel began laying
        the foundation for the reckless homicide defense as early as voir
        dire, and never substantially deviated from that defense.


                                                 ***


        THE COURT FINDS that appellate counsel made a strategic
        decision to raise three references by the State of the term “evil”
        during voir dire. The Court further finds that appellate counsel
        made the conscious decision to not raise more references to the
        term “evil”, because trial counsel also used the term several times
        to explain legal concepts to the potential jurors.


        THE COURT FINDS that there is no probative evidence that the
        references to “evil”, by both the State and trial counsel, had any
        prejudicial effect on the jurors ultimately chosen to hear the case.
        In addition, there is no probative evidence that the references to
        evil in voir dire, prevented Defendant/Petitioner from receiving a
        fair trial.


        THE COURT FINDS that there is no probative evidence that,
        had appellate counsel presented the additional references of
        “evil”, the outcome of the direct appeal would have been
        different.


Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 7 of 20
                                                 ***


        THE COURT FINDS that the Defendant alleged that he
        received ineffective assistance of trial counsel for the following
        reasons: a) Trial counsel failed to withdraw the insanity defense
        prior to the commence of the trial; b) Trial counsel did not
        adequately preserve for appeal the issue of the amendment of the
        information by the State during the trial; and c) Trial counsel
        failed to object to alleged prosecutorial misconduct during the
        State's rebuttal argument; specifically to the State's
        characterization of reckless homicide, and the State's alleged
        mischaracterization of evidence of intoxication.


                                                 ***


        THE COURT FINDS that trial counsel vigorously defended
        Defendant/Petitioner through the filing of pretrial motions for
        discovery, conducting depositions of witnesses, the filing of a
        Notice of Mental Disease or Defect [an insanity defense], filing
        of a motion to appoint an expert witness in the field of
        toxicology, filing motions to suppress, filing a memorandum in
        support of his motions to suppress and motion in limine, filing
        proposed final instructions and interposing numerous objections
        during the trial.


        THE COURT FINDS that trial counsel's decision not to
        withdraw the insanity defense was not necessarily unreasonable,
        where the defense presented was based upon a diminished mens
        rea due to defendant's self-described recklessness conduct and his
        intoxication.


        THE COURT FINDS that trial counsel's decision not to
        withdraw the insanity defense was most likely strategic, as the
        Defendant/Petitioner was prone to, and did display erratic
        behavior on the witness stand.

Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 8 of 20
        THE COURT FINDS that trial counsel's decision not to object
        to the State's analysis of reckless homicide was most likely
        strategic. The Court further finds that trial counsel also used
        driving behavior to explain recklessness to the jury in voir dire.


        THE COURT FINDS that the Defendant/Petitioner during his
        trial testimony told the jury that he was "guilty of reckless
        homicide." The Court further finds that Defendant/Petitioner
        further stated, “I'm guilty of a reckless, drunken, negligent act.”
        Tr. 472.


        THE COURT FINDS that the evidence of the injuries suffered
        by Samantha Muchowicz was appalling. Before Samantha's
        death she suffered multiple contusions, lacerations, abrasions and
        or deformities to her mouth, ear, chin, forehead, eyes, neck, jaw,
        shoulders, cheeks, arms, ribs, chest, back, scapula, kidney areas,
        areas over vital organs, abdomen, arm pits, nipples, temple, nose,
        lips, wrists, hands, orbits, buttocks, and thigh; her ulna was
        broken, her wrist was broken, her lung was bruised, her jaw was
        broken or dislocated; she had a subdural hematoma, intra-
        abdominal wounds, including a torn colon, an atlanto-occipital
        dislocation (her head was “ripped off her neck,” —ligaments
        were disrupted from the spinal column so that only “tissue and
        skin” held it to the body), and cerebral contusions or bruising of
        her brain." Clark v. State, 915 N.E. 126, 129.


        THE COURT FINDS that “Samantha Muchowicz suffered at
        least twenty separate injuries, more than one of which would be
        lethal, and she was still alive when she sustained most of them.”
        Id.


        THE COURT FINDS that the State's characterization in rebuttal
        of reckless homicide, by illustrating it in the context of a driving
        offense, if misleading at all, was not so misleading as to render
        the jury’s verdict unreliable; particularly [in] light of the

Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 9 of 20
        Defendant/Petitioner's own testimony, admission of guilt, and
        the physical evidence of the injuries sustained by the victim.


        THE COURT FINDS that the Court correctly instructed the jury
        on reckless mens rea and reckless homicide in the final
        instructions.


        THE COURT FINDS that the Court’s Final Instructions
        correctly and specifically stated that comments and statements of
        counsel are not evidence. The Court further finds that the Court's
        Final Instructions stated that the jury must base its decision on
        the evidence presented in the case and not based upon sympathy
        or prejudice.


        THE COURT FINDS that during the State's rebuttal closing, the
        Prosecutor made a single comment that “as attorneys in the
        future read the case law and they read the case of State of
        Indiana v. Ian Clark, or Ian Clark versus the State, this case will
        stand for the proposition that this community and this State will
        not tolerate what happened here.” The Court further finds that
        this statement was immediately followed by, “It will also stand
        for the proposition that this, these facts that are sufficient to
        support the inference that the Defendant knowingly and
        intentionally murdered Samantha. I am asking you to find the
        Defendant guilty of murder. Thank you.” Tr. 534-35


        THE COURT FINDS that there is no probative evidence that the
        comments were “so persuasive” as to render the jury's verdict
        unreliable, especially given the Defendant/Petitioner's own
        admission to killing the child, and the evidence of the brutality of
        the crime.


        THE COURT FINDS that there is no probative evidence that
        trial counsel or appellate counsel’s representation fell below an
        objective standard of reasonableness and that counsel committed

Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 10 of 20
              errors so serious, that the petitioner did not have ‘counsel’
              guaranteed by the 6th Amendment.


              THE COURT FINDS that there is no probative evidence that
              but for any alleged errors by trial counsel or appellate counsel,
              the result of the proceeding would have been different.


      Appellant’s App. pp. 121-25.

[7]   Clark now appeals the denial of his petition for post-conviction relief.

      Additional facts will be provided as necessary.


                                         Standard of Review

[8]   Post-conviction proceedings are not “super appeals” through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

      (Ind. 2002). The post-conviction petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Henley v. State, 881

      N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for

      post-conviction relief, the petitioner stands in the position of one appealing

      from a negative judgment. Id. To prevail on appeal from the denial of post-

      conviction relief, the 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. at 643-44.


      Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 11 of 20
[9]    Where, as here, the post-conviction court makes findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       must determine if the court's findings are sufficient to support its judgment.

       Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff'd on reh’g, 947

       N.E.2d 962. Although we do not defer to the post-conviction court's legal

       conclusions, we review the post-conviction court’s factual findings under a

       clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence

       or judge the credibility of witnesses, and we will consider only the probative

       evidence and reasonable inferences flowing therefrom that support the post-

       conviction court’s decision. Id.


              Ineffective Assistance of Trial and Appellate Counsel

[10]   When we review claims of ineffective assistance of trial and appellate counsel,

       we apply the same standard. Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007).


               A defendant claiming a violation of the right to effective
               assistance of counsel must establish the two components set forth
               in Strickland v. Washington, 466 U.S. 668 (1984). First, the
               defendant must show that counsel’s performance was deficient.
               This requires a showing that counsel’s representation fell below
               an objective standard of reasonableness, and that the errors were
               so serious that they resulted in a denial of the right to counsel
               guaranteed the defendant by the Sixth Amendment. Second, the
               defendant must show that the deficient performance prejudiced
               the defense. To establish prejudice, a defendant must show 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 is a probability sufficient
               to undermine confidence in the outcome.


       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 12 of 20
               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. A
               strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. The Strickland Court
               recognized that even the finest, most experienced criminal
               defense attorneys may not agree on the ideal strategy or the most
               effective way to represent a client. Isolated mistakes, poor
               strategy, inexperience, and instances of bad judgment do not
               necessarily render representation ineffective. The two prongs of
               the Strickland test are separate and independent inquiries. Thus, if
               it is easier to dispose of an ineffectiveness claim on the ground of
               lack of sufficient prejudice . . . that course should be followed.


       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

       omitted).

[11]   Concerning claims of ineffective assistance of appellate counsel, we must be

       “particularly sensitive to the need for separating the wheat from the chaff in

       appellate advocacy, and should not find deficient performance when counsel’s

       choice of some issues over others was reasonable in light of the facts of the case

       and the precedent available to counsel when that choice was made.” Reed v.

       State, 856 N.E.2d 1189, 1196 (Ind. 2006). Moreover, ineffective assistance is

       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.


[12]   Claims of ineffective assistance of appellate counsel generally fall into three

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

       to present issues well. Id. at 1195. To show that counsel was ineffective for
       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 13 of 20
       failing to raise an issue on appeal, the defendant must overcome the strongest

       presumption of adequate assistance, and judicial scrutiny is highly deferential.

       Id. 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. Id. 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. Id.


             Amendment to the Charging Information During Trial

[13]   On the last day of Clark’s murder trial, the trial court granted the State’s request

       to amend the charging information. The murder charge originally alleged that

       Clark “knowing and intentionally” killed the child. The trial court allowed an

       amendment alleging that Clark “knowingly or intentionally” killed the child.

       Trial Tr. p. 358. Clark’s trial counsel objected to the amendment and argued

       that the substantive change prejudiced Clark’s defense. Clark’s trial counsel

       moved for a continuance of the jury trial.


[14]   The trial court agreed with the State that the amendment would correct a

       typographical error and the change would make the charging information

       conform to the precise language of the murder statute. Id. at 360. Further, the

       trial court stated “the Court would be obligated, I think, to instruct the Jury in

       any event, as to a correct statement of the law so there’s, in the Court’s view, no


       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 14 of 20
       harm, no foul….” Id. In both the preliminary and final instructions, the jury

       was informed that a person commits murder by knowingly or intentionally

       killing a human being. Arguing that the amendment to the charging

       information was one of substance rather than one of form, Clark argues that his

       trial counsel was ineffective for failing to move for a mistrial because the

       information was amended during trial and his appellate counsel was ineffective

       for failing to raise the issue on direct appeal.


[15]   Indiana Code section 35-34-1-5(c), provides, “Upon motion of the prosecuting

       attorney, the court may, at any time before, during, or after the trial, permit an

       amendment to the indictment or information in respect to any defect,

       imperfection, or omission in form which does not prejudice the substantial

       rights of the defendant.”


               An amendment [to the charging information] is one of form, not
               substance, if both (a) a defense under the original information
               would be equally available after the amendment, and (b) the
               accused’s evidence would apply equally to the information in
               either form. And an amendment is one of substance only if it is
               essential to making a valid charge of the crime.


       Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind.2007).


[16]   Furthermore, “[a] defendant’s substantial rights include a right to sufficient

       notice and an opportunity to be heard regarding the charge; and, if the

       amendment does not affect any particular defense or change the positions of

       either of the parties, it does not violate these rights.” Erkins v. State, 13 N.E.3d

       400, 405 (Ind. 2014) (quotation omitted). “Ultimately, the question is whether
       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 15 of 20
       the defendant had a reasonable opportunity to prepare for and defend against

       the charges.” Id. at 405-06 (quotation omitted).


[17]   Throughout his murder trial, Clark maintained his defense that his “reckless”

       actions caused the two-year-old child’s death. Clark’s defense permeated voir

       dire, opening and closing statements, and the jury was given instruction on

       reckless homicide in addition to murder. The jury was also instructed on the

       meaning of committing an act “intentionally,” “knowingly,” and “recklessly.”

       Importantly, the State presented evidence at trial establishing the extent and

       deliberate and horrendous nature of the child’s injuries to counter Clark’s claim

       that his actions were reckless.


[18]   Under these circumstances, the change in the charging information was one of

       form because it did not have an impact on Clark’s defense or the evidence he

       presented. Therefore, Clark’s substantial rights were not prejudiced when the

       charging information was amended during trial to conform with the precise

       language of the murder statute.

[19]   Accordingly, we conclude that Clark has not established 1) that he was

       prejudiced when trial counsel failed to request a mistrial when the charging




       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 16 of 20
       information was amended during trial, or 2) that raising the issue on direct

       appeal would have resulted in reversal of his murder conviction.2


                          Failure to Withdraw the Insanity Defense

[20]   Clark argues that trial counsel was also ineffective when he withdrew Clark’s

       insanity defense mid-trial. During the preliminary instructions, the court

       tendered an insanity defense instruction to the jury. During opening statement,

       the State informed the jury that two psychiatrists would testify that Clark was

       able to appreciate the wrongfulness of his conduct on the date he killed the

       child. On the third day of trial, counsel withdrew Clark’s insanity defense.


[21]   Because trial counsel is deceased, the record does not establish counsel’s reason

       for failing to withdraw the insanity defense, which Clark claims was “destined

       to fail” because both court-appointed experts concluded that Clark was not

       insane on the date in question. Appellant’s Br. at 20.

[22]   Assuming that trial counsel was deficient for failing to withdraw the defense

       prior to trial, Clark must still establish that there is a reasonable probability that

       the result of the proceeding would have been different. Clark argues that he was

       prejudiced “because the State was able to use the defense to question potential




       2
         At the hearing on Clark’s petition for post-conviction relief, appellate counsel testified that he did not raise
       this issue on direct appeal because he believed that our court would agree with Judge Reed that the
       amendment was one of form, and not substance. Tr. p. 38.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017              Page 17 of 20
       jurors on irrelevant concepts” and to expose the jury to “information that was

       not relevant and directly contradicted the chosen defense.” Id.


[23]   Clark’s defense at trial was that he recklessly caused the two-year-old child’s

       injuries by falling on her or dropping her on a coffee table. However, the

       defenseless child suffered at least twenty separate injuries and many of the

       injuries were lethal. “Neither one fall, nor multiple falls, nor multiple household

       accidents, could have possibly caused” the child’s injuries. Clark, 915 N.E.2d at

       129. The evidence that Clark knowingly or intentionally injured the child

       causing her death was overwhelming. Moreover, the State presented evidence

       at trial that Clark attempted to prevent the child’s mother from calling 911

       when she returned home to find her child beaten and bloodied.

[24]   Although the insanity defense should have been withdrawn prior to trial given

       the psychiatrists conclusions that Clark was not insane, we cannot conclude

       that the result of the proceeding would have been different. Faced with the

       overwhelming evidence that Clark knowingly or intentionally killed the child,

       Clark cannot establish that the references to the insanity defense during voir

       dire and preliminary instructions prejudiced his defense. Cf. Weedman v. State,

       21 N.E.3d 873, 885-86 (Ind. Ct. App. 2014) (holding that the evidence

       concerning the withdrawn insanity defense was erroneously admitted but did

       not constitute fundamental error because the evidence was overwhelming that

       the defendant did not act in self-defense), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 18 of 20
                                           Closing Argument

[25]   Next, Clark argues that trial counsel was ineffective for failing to object to the

       prosecutor’s argument that Clark started drinking alcohol to make it appear that

       he was intoxicated when the offense occurred. Clark argues that the argument

       was speculative and not supported by the evidence. Clark also claims he was

       prejudiced by the deficient performance because the “only contested issue at

       trial was mens rea.” Appellant’s Br. at 22.


[26]   The evidence at trial established that Clark drank a significant amount of

       alcohol and became voluntarily intoxicated at some point on the date of the

       offense. The jury saw photographs of empty beer and liquor bottles on the

       kitchen counters and coffee table. The jury also heard Clark’s testimony that he

       was often so drunk that he would black out. Clark argued that he was extremely

       intoxicated when he recklessly injured the child causing her death.

[27]   However, Clark’s voluntary intoxication is not a defense to the crime. See Ind.

       Code § 35-41-2-5 (“Intoxication is not a defense in a prosecution for an offense

       and may not be taken into consideration in determining the existence of a

       mental state that is an element of the offense[.]”). Therefore, even if the State

       mischaracterized the evidence concerning when Clark consumed most of the

       alcohol depicted in the photographs of his home, the fact is irrelevant to

       whether Clark “recklessly,” “knowingly,” or “intentionally” killed the two-

       year-old child.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 19 of 20
[28]   Clark cannot establish that he was prejudiced by his trial counsel’s failure to

       object to the alleged prosecutorial misconduct. As we have repeatedly discussed

       above, overwhelming evidence supports the jury’s conclusion that Clark

       knowingly or intentionally killed the child.


                                           Cumulative Errors

[29]   Finally, Clark argues that that trial counsel’s cumulative errors denied him his

       constitutional right to a fair trial. Given the overwhelming evidence of his guilt,

       Clark cannot establish that his defense was prejudiced even when we consider

       the alleged errors in total. None of the errors had a direct impact on his chosen

       defense, i.e. that commission of the crime was reckless.


                                                 Conclusion

[30]   The post-conviction court properly denied Clark’s petition for post-conviction

       relief.

[31]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1605-PC-970 | February 27, 2017   Page 20 of 20
