      MEMORANDUM DECISION
                                                                        Jul 13 2015, 8:25 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                          Gregory F. Zoeller
      Public Defender of Indiana                                Attorney General of Indiana
      J. Michael Sauer                                          Ellen H. Meilaender
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Gene Hooks,                                               July 13, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                82A01-1412-PC-546
              v.                                                Appeal from the
                                                                Vanderburgh Superior Court
      State of Indiana,                                         The Honorable Robert J. Pigman,
                                                                Judge
      Appellee-Respondent.
                                                                Cause No. 82D03-1108-PC-6




      Kirsch, Judge.

[1]   The Vanderburgh Superior Court denied Gene Hooks’s petition for post-

      conviction relief, and he now appeals claiming that the post-conviction court

      clearly erred in denying his petition. On appeal, he raises one issue that we

      restate as: whether trial counsel provided ineffective assistance for failing to


      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015      Page 1 of 18
      object during trial and during the State’s closing argument and for presenting

      purportedly inconsistent defense theories during opening statement and closing

      argument.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts underlying Hooks’s convictions, as presented in his direct appeal, are:

              Hooks and his wife, Maxine, often babysat for their daughter Aleta’s
              children, including I.W., who was born in December 2001, and C.H.,
              who was born in May 1995. In July 2008, Aleta’s fiancé, Maurice,
              walked into I.W.’s bedroom and saw her “humping” a pillow with her
              hand near her genital area. I.W. told Maurice that Hooks had
              “messed” with her. I.W. told Aleta that Hooks had put his “thing” or
              “private” on her “private.” According to I.W., Hooks took her into
              the laundry room, had her stand on a stepping stool, removed her
              pants, placed cocoa butter on her genital area, and rubbed his penis on
              her genitals. After he stopped, he would give I.W. some toilet paper
              and tell her to wipe off the cocoa butter.
              Later, Maxine went to Maurice’s residence to talk to Aleta and the
              girls. While Maxine was questioning C.H., C.H. said that Hooks had
              also touched her. According to C.H., Hooks started touching her
              when she was five years old. C.H. said that, when Hooks and Maxine
              lived in an apartment, he would put C.H. on his lap, pull her pants
              down, put cocoa butter on her, and rub his penis on her inner thigh.
              When Hooks and Maxine moved into a new house, he would put her
              on the step stool in the laundry room, put cocoa butter on her, and rub
              his penis against her vagina. Afterwards, Hooks would give her a
              paper towel, and she would clean the cocoa butter and “white goopey
              stuff” off of herself. Hooks stopped touching C.H. when she was
              eleven. When she was five years old, C.H. drew a picture of what was
              happening and gave it to Maxine, but Maxine told C.H. to stop lying.
              In 2001, Maxine and Hooks adopted twin sons belonging to Maxine’s
              cousin, Helen. In 2006 through mid-2008, Maxine and Hooks also

      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 2 of 18
              took care of two more of Helen’s children, including her daughter
              L.Y., who was born in June 1998, while Helen was incarcerated.
              After Helen learned of C.H. and I.W.’s allegations, L.Y. told Helen
              that Hooks had also touched her.
      Hooks v. State, No. 82A01-1005-CR-220, slip op. at *1, 941 N.E.2d 567 (Ind. Ct.

      App. Jan. 26, 2011), trans. denied (citations omitted).


[4]   The State charged Hooks with three counts of child molesting, one as a Class A

      felony, alleging sexual intercourse with L.Y., and two as Class C felonies,

      alleging fondling or touching of I.W. and C.H., respectively. The State later

      amended the charging information to allege two more Class A felony child

      molesting counts, for having engaged in sexual intercourse with I.W. and with

      C.H.


[5]   A four-day jury trial was held in March and April 2010. Hooks was represented

      by attorney counsel Steven Bohleber both before and during trial. Bohleber

      conducted pretrial discovery, including written discovery and multiple

      depositions. At trial, the State presented the testimony of eight witnesses, and

      the defense called five witnesses, including Hooks. During trial, L.Y. became

      unresponsive to questions, having answered “only a fraction of the questions

      asked” and “most of her answers were barely audible or inaudible.” Id. at *2.

      Consequently, Hooks moved to strike L.Y.’s testimony. Although the trial

      court denied the motion, it later terminated the direct examination and

      instructed the jury not to consider L.Y.’s testimony, finding that it was

      insufficiently probative and the jury could not consider it. The trial court then

      granted a directed verdict regarding Count I, Class A felony child molesting,


      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 3 of 18
      which had alleged that Hooks engaged in sexual intercourse with L.Y. At the

      close of the State’s evidence, Hooks moved for and the trial court granted

      directed verdicts on the other two Class A felonies as well, based on lack of

      evidence as to intercourse with I.W. and C.H.


[6]   The jury found Hooks guilty of the two remaining Class C felonies, and the trial

      court sentenced him to two consecutive six-year sentences. Id. On direct

      appeal, Hooks asserted that the trial court erred by not striking certain witness

      testimony and claimed that the evidence was insufficient to sustain his

      convictions. Id. at *2-4. This court affirmed his convictions. Id. at *4.


[7]   On August 4, 2011, Hooks filed a pro se petition for post-conviction relief, and

      after the Public Defender of Indiana filed an appearance on his behalf, Hooks

      filed an amended petition, alleging that trial counsel: (1) failed to object to, or

      prevent the introduction of, evidence “that Hooks threatened to kill people,

      pulled guns on people, fired guns at persons and residences, possessed weapons,

      and had a violent character”; (2) made claims in opening statement that he

      knew or should have known would not be supported by trial evidence and, in

      closing argument, failed to advocate in line with Hooks’s trial testimony; and

      (3) failed to object during the State’s closing argument when the prosecutor

      mentioned matters not in evidence. Appellant’s App. at 46.


[8]   The post-conviction court held a two-day hearing. Bohleber testified at the

      hearing at length, and an expert who reviewed the trial record of proceedings

      also testified, opining that Bohleber performed ineffectively in Hooks’s defense.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 4 of 18
      In December 2014, the post-conviction court entered written findings of fact

      and conclusions thereon denying post-conviction relief. Hooks now appeals.


                                     Discussion and Decision
[9]   Post-conviction proceedings are not “super appeals” through which a convicted

      person can raise issues that he did not raise at trial or on direct appeal.

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied 537 U.S. 839

      (2002); Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013) (quoting

      Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)), trans. denied. Instead, post-

      conviction proceedings afford petitioners a limited opportunity to raise issues

      that were unavailable or unknown at trial and on direct appeal. Hinesley, 999

      N.E.2d at 981. Post-conviction proceedings are civil in nature, and petitioners

      bear the burden of proving their grounds for relief by a preponderance of the

      evidence. Ind. Post-Conviction Rule 1(5); Garcia v. State, 936 N.E.2d 361, 363

      (Ind. Ct. App. 2010), trans. denied. A petitioner appealing from the denial of

      post-conviction relief stands in the position of one appealing from a negative

      judgment. Id. A petitioner who appeals the denial of post-conviction relief

      faces a rigorous standard of review, as the reviewing court may consider only

      the evidence and the reasonable inferences supporting the judgment of the post-

      conviction court. McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012)

      (citing Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans.

      denied), trans. denied. The defendant must establish that the evidence, as a

      whole, unerringly and unmistakably leads to a conclusion opposite that reached

      by the post-conviction court. Hinesley, 999 N.E.3d at 981; Garcia, 936 N.E.2d at

      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 5 of 18
       363. “‘In other words, the defendant must convince this Court that there is no

       way within the law that the court below could have reached the decision it

       did.’” Wilkes, 984 N.E.2d at 1240 (quoting Stevens v. State, 770 N.E.2d 739, 745

       (Ind. 2002), cert. denied 540 U.S. 830 (2003)) (emphasis in original).


[10]   Hooks claims that the post-conviction court erred by concluding that he

       received effective assistance of counsel. To prevail on a claim of ineffective

       assistance of counsel, a petitioner must demonstrate both that his counsel’s

       performance was deficient and that he was prejudiced thereby. Wilkes, 984

       N.E.2d at 1240 (citing Strickland v. Washington, 466 U.S. 668 (1984)). This is

       the so-called Strickland test. This standard first asks whether, considering all the

       circumstances, counsel’s actions were “reasonable[ ] under prevailing

       professional norms.” Id. As our Supreme Court has explained,

               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.
       Timberlake, 753 N.E.2d at 603 (citations and quotations omitted).


[11]   Even if counsel’s performance is deficient, the defendant must demonstrate that

       counsel’s performance actually prejudiced the defense. Wilkes, 984 N.E.2d at

       1241. “‘To establish the requisite prejudice, a petitioner must show there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 6 of 18
       the proceeding would have been different.’” McCullough, 973 N.E.2d at 74-75.

       Our Supreme Court has stated that a “reasonable probability” is a probability

       sufficient to undermine confidence in the outcome. Smith v. State, 765 N.E.2d

       578, 585 (Ind. 2002). The two elements of Strickland are separate and

       independent inquiries. Failure to satisfy either prong will cause the claim to

       fail, but most ineffective assistance of counsel claims can be resolved by a

       prejudice inquiry alone. McCullough, 973 N.E.2d at 75.


                                           A. Evidence of Violence

[12]   Hooks claims that his trial counsel rendered constitutionally ineffective

       assistance by allowing into evidence certain testimony that Hooks owned guns

       and knives and had used them in a way to indicate a violent character. More

       specifically, Hooks challenges trial counsel’s failure to prevent the introduction

       of certain evidence, including the following: (1) I.W.’s testimony that Hooks

       told her that he “was going to kill [her] daddy” “because he didn’t like him”

       (Trial Tr. at 59-60) ; (2) I.W.’s testimony that she observed Hooks and her father

       during an argument, and Hooks “got a gun” (Id. at 66); (3) Aleta’s testimony

       that she had reason to be fearful of Hooks because he kept weapons in the

       house, she knew “what he was capable of,” and that, when she was eighteen or

       nineteen years old, Hooks had “shot my house up, and tried to shoot my kids’

       dad, my oldest kids’ dad” (Id. at 163-64); (4) Aleta’s testimony that her

       daughter V.H., who was not a victim in this case, said that Hooks “pulled guns

       on her” (Id. at 167); (5) Aleta’s testimony, in response to a juror question

       regarding whether Hooks kept any guns in a closet by the laundry room, that

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 7 of 18
       Hooks kept a gun and a sword in a hall closet by the laundry room; (6) C.H.’s

       testimony that Hooks had a silver gun that “he pointed [] at me but I wasn’t

       scared of it” (Id. at 205); (7) V.H.’s testimony that Hooks “put a gun to my head

       before and asked me if I was scared” . . . “just to spite me[,] but he doesn’t scare

       me.” (Id. at 231); (8) and Helen’s testimony that when she and relatives went to

       Hooks’s house to confront him after Helen’s daughter L.Y. alleged that he had

       molested her, Hook “put a gun on us, and we all jumped back in the car and

       left.” Id. at 252. Hooks maintains this “barrage of extrinsic evidence regarding

       his conduct and character” was irrelevant to the charged offenses and

       prejudiced him, claiming that it “stripped [him] of his presumption of

       innocence, predisposed the jury to find him guilty, and made a fair trial

       impossible.” Appellant’s Br. at 10-11; see also id. at 25.1 We disagree.


[13]   At the post-conviction hearing, Hooks’s post-conviction counsel examined

       Bohleber about the various instances at trial when witnesses testified to Hooks

       keeping a gun or knife in the house and/or in a closet near the location of the

       molestations, or pointing a gun at people on specific occasions, or having made

       threats to kill Maurice because he did not like him. Post-conviction counsel

       inquired of Bohleber why he did not file a motion in limine to keep out such

       evidence, or object during trial on relevance grounds or some other grounds,

       including objecting to juror questions that eventually were posed asking if



       1
        Hooks claims that trial counsel should have objected to the evidence “on the basis that it violated Ind.
       Evidence Rule 402, 404(a), and 404(b),” and the trial court “would have had no choice but to sustain the
       objections.” Appellant’s Br. at 18.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015              Page 8 of 18
       Hooks kept a gun in his house and if I.W. had ever seen him with a gun.

       Bohleber conceded that, in hindsight, the witnesses’ testimonies in some

       instances may have been irrelevant. However, Bohleber explained, as he

       understood the State’s strategy, the State intended to show that Hooks

       controlled the girls through use of, or possession of, the guns and knives, and

       thus such evidence was, or could have been considered, relevant from the

       State’s perspective. Bohleber also testified that when evidence of Hooks’s

       possession of or pointing of a gun initially came into evidence, he viewed it as

       “simply another of the spurious allegations” against Hooks, and did not view it

       as a major threat to the defense’s case; Bohleber conceded, however, that as

       trial progressed, more evidence of such incidents was introduced and, in a

       sense, that angle “developed a life of its own,” which he had not anticipated.

       PCR Tr. at 21.


[14]   We have recognized, “[A]s a trial unfolds, events occur, some unexpected, that

       counsel must react to in real time. Thus, an appellate court cannot compare

       counsel’s real-time performance to what might have been done with the benefit

       of hindsight.” McCullough, 973 N.E.2d at 75. Even assuming, as Hooks claims,

       that Bohleber’s performance was deficient and that he missed multiple

       opportunities to “stem the tide of extrinsic bad act and character evidence,”

       Appellant’s Br. at 15, Hooks must show that he was prejudiced by the challenged

       evidence, i.e., that there is a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.

       McCullough, 973 N.E.2d at 74-75. We find that Hooks has not met this burden.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 9 of 18
[15]   When Hooks testified, he denied molesting I.W. and C.H., and he denied ever

       threatening his grandchildren with guns or knives. He also denied that he ever

       shot at Aleta’s prior home, as she testified that he did. C.H., a victim in this

       case, testified that Hooks had previously pulled a gun on her but she “wasn’t

       scared[.]” Trial Tr. at 205. Her sister, V.H., who was not a victim in this case,

       also testified that Hooks had put a gun to her head “to spite [her]” but reported,

       “[H]e doesn’t scare me.” Id. at 231. While I.W. testified that she had seen

       Hooks wield a gun during an argument with her father, Maurice, and observing

       that scared her, I.W. did not indicate that Hooks held a gun at her or put her in

       fear or threatened her not to tell. In fact, she testified that she did not disclose

       sooner because she was afraid her mother would be mad. Thus, the girls’

       testimonies did not indicate fear of Hooks because of the guns or knives kept in

       his home, nor did their testimony support the theory that he used those items to

       control them, as the State may have been trying to establish. In line with that,

       the State did not refer to any of that evidence in closing argument or make a

       propensity argument based on it.


[16]   This was a case of minor girls testifying to having been molested by Hooks,

       each giving descriptions of where and how it happened – including detail about

       step stools and cocoa butter and where other members of the household were at

       the time – and Hooks testifying that the molestations did not happen. The jury

       heard the evidence and, evidently, credited the children’s testimony over

       Hooks’s denial. Hooks has not established that but for trial counsel’s alleged

       errors regarding the admission of evidence concerning guns or knives or violent


       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 10 of 18
       incidents, there is a reasonable probability that the result of the proceeding

       would have been different.


                  B. Trial Counsel’s Opening Statement and Closing Argument

[17]   Hooks also claims that Bohleber provided ineffective assistance by (1) making

       claims in opening statement that he knew or should have known would not be

       supported by the evidence, and (2) adopting a different defense theory in closing

       argument, which contradicted and undermined Hooks’s testimony. We

       examine each argument in turn.


[18]   Bohleber explained at the post-conviction hearing that, initially, the defense

       strategy was to illustrate that there was family discord and that Aleta and Helen

       had coached their daughters to make the accusations against Hooks in order to

       harm him or gain advantage over him. In accordance with that strategy,

       Bohleber’s opening statement told the jurors that Aleta and Helen had “long

       been at odds” with Hooks and his wife, and he advised the jury to “question the

       motives of the parents[.]” Trial Tr. at 10. Bohleber told the jury that such

       family discord was evident because – and they would hear evidence that – Aleta

       was “in a contentious civil litigation with them at the time these allegations

       were made.” Id. Hooks points out that the trial evidence revealed that the

       lawsuit, which was a small claims suit for the return of Aleta’s furniture, was

       filed after the allegations were made. This, Hooks argues, shows that Bohleber’s

       opening statements were not supported by the trial evidence, which Hooks

       argues Bohleber knew or should have known, and that by making factual

       assertions that were not supported by the evidence, Bohleber diminished the
       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 11 of 18
       integrity of his defense. He claims that Bohleber “was not prepared for trial and

       did not adequately represent [him].” Appellant’s Br. at 20.


[19]   Hooks mounts a similar claim that Bohleber, in his opening statement, told the

       jury they would hear a witness testify to having heard Aleta and Helen stating

       that they were “going to get Gene Hooks” and were “going to put him in jail[,]”

       Trial Tr. at 11, thus supporting the idea that the parents schemed “to get”

       Hooks and the molestation accusations were simply falsehoods, made up to

       hurt Hooks. During trial, witness Thomas Payne testified to having heard

       Aleta and Helen “plotting against” Hooks and that Aleta stated she “was going

       to get that MF.” Id. at 378-79. However, Payne’s testimony revealed that he

       heard this conversation in or around May 2009, well after the allegations of

       abuse had been reported to the police in July or August 2008. Hooks argues

       that it may have appeared to the jury that Aleta’s statement that she “was going

       to get” Hooks was motivated, not by family strife or vengeance, but instead on

       parental anger about the allegations that the children had disclosed. Thus,

       Hooks asserts, Payne’s testimony may have worked against Hooks as opposed

       to in his favor. Hooks argues that Bohleber should have known that Payne’s

       testimony would contradict his opening statement and potentially be harmful

       rather than helpful to his defense, and his representation was thus ineffective.


[20]   We are not persuaded that Bohleber’s opening statement about Aleta’s lawsuit

       or Payne’s anticipated testimony, even if they constituted deficient

       performance, ultimately prejudiced Hooks, given the other evidence presented

       and in view of the full record. In the opening statement, Bohleber suggested

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 12 of 18
       that the family was at odds, resulting in false allegations being made against

       Hooks, and in support of that contentious relationship, Bohleber presented

       evidence during trial of Aleta’s pending lawsuit against Maxine. He also called

       Payne as a witness to testify about statements he overheard Aleta make

       suggesting she was out to get Hooks. This tactic was consistent with Bohleber’s

       opening statement. While Hooks points out that the trial testimony was not

       entirely consistent with what was forecasted in the opening statement – i.e., the

       lawsuit was filed after and not before the allegations came to light, and,

       likewise, Aleta’s statement as overheard by Payne was made after, not before

       the allegations by the children were made – we do not find that the alleged

       errors were sufficient to undermine confidence in the outcome of the

       proceedings.


[21]   Hooks next claims that his trial counsel was ineffective because he adopted “a

       new defense theory” in closing that contradicted the opening statement as well

       as Hooks’s testimony. Appellant’s Br. at 19. Bohleber explained at the post-

       conviction hearing that, initially, the defense strategy illustrated that there was

       significant family discord and that Aleta and Helen had coached their daughters

       to make the accusations against Hooks in order to harm him or gain advantage

       over him. In accord with that plan, Bohleber intended to call a variety of family

       members as witnesses to illustrate the “war” between camps of the family. PCR

       Tr. at 80. However, after Hooks no longer faced three Class A felonies, the

       plan shifted away from calling a myriad of family members, which posed its

       own risks, to having Hooks testify to deny the girls’ accusations.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 13 of 18
[22]   During trial, Hooks testified that he believed Aleta and Helen had coached their

       daughters to falsely accuse him, which was consistent with the strategy

       suggested in Bohleber’s opening statement. In closing argument, Bohleber

       argued that studies have shown that children can make up allegations of

       molestation for a variety of reasons, whether because someone suggested it to

       them, or peer pressure, or they simply do it on their own. Hooks argues that

       because trial counsel did not strictly stick with the original premise that it was

       the parents that were coaching the girls, trial counsel thereby “abandon[ed] this

       defense theory” and likewise abandoned his client. Appellant’s Br. at 21. The

       post-conviction court determined, and we agree, that “the alleged change in

       theories of defense is not [] as pronounced . . . as advocated by the Petitioner.”

       Appellant’s App. at 115.


[23]   At the post-conviction hearing, Bohleber acknowledged that, after the defense

       obtained a directed verdict on the three Class A felonies, leaving the two Class

       C felonies pending, the defense strategy shifted somewhat, explaining that he

       no longer felt it was necessary to call the family witnesses, which could pose

       risks for Hooks, electing to change the defense strategy somewhat, focusing

       more on the children’s accusations versus Hooks’s personal denial. We

       recognize the defense theory expanded from the somewhat narrow position that

       it was entirely the parents’ idea to make up these accusations, which was

       suggested in the opening statement, to the wider proposition that it is proven

       fact that children have been known to make up accusations of sexual abuse for

       a number of reasons, whether because someone told them to do so, or they


       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 14 of 18
       simply did it on their own accord. However, we are not persuaded that this

       change abandoned Hooks or contradicted his testimony. We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). As we have recognized, “[j]ust because trial counsel is

       unable to pursue a defensive strategy as effectively as he or she wanted to does

       not mean that the plan was a bad plan.” McCullough, 973 N.E.2d at 76.

       “‘Strickland does not guarantee perfect representation, only a reasonably

       competent attorney.’” Woodson v. State, 961 N.E.2d 1035, 1041-42 (Ind. Ct.

       App. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 110 (2011)), trans. denied.

       Here, our review of the record reveals that at the outset of trial, Bohleber

       presented a reasonable and sound defense strategy, and although he modified it

       based on events that occurred during trial, his performance during trial was

       aimed at executing the deliberate defense strategy and was not deficient or

       prejudicial to Hooks.


                                        C. State’s Closing Argument

[24]   Hooks also alleges that trial counsel was ineffective for failing to object during

       the State’s closing argument. Specifically, he argues that, when the prosecutor

       commented that the victims’ testimonies matched their prior statements to

       police, Bohleber should have objected because there had been no trial evidence

       concerning the substance of what the children had said during police interviews.

       That is, the statement by the prosecutor was impermissible commentary upon

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 15 of 18
       matters not in evidence and, instead, reflected the prosecutor’s personal

       knowledge of the case. The post-conviction court characterized the

       prosecutor’s comment as “inappropriate,” stating that it “should not have been

       presented to the jury” because, although it was established during trial that a

       complaint had been made and investigated by police and that the children had

       been interviewed, “the [] details of those statements had not been admitted for

       the jury’s consideration[.]” Appellant’s App. at 113. The post-conviction court

       concluded, however, that any error in failing to object represented an “isolated

       incident” and did not amount to either deficient performance or prejudice to

       Hooks. Id. at 115. Hooks claims that the post-conviction court was clearly

       erroneous in that regard, given that the State’s case was based on the testimony

       of I.W. and C.H., and the prosecutor’s comment “unfairly bolstered their

       credibility in the eyes of the jury.” Appellant’s Br. at 23.


[25]   Initially, we note that Hooks claims that the post-conviction court applied an

       incorrect standard when it determined that Hooks did not suffer prejudice. The

       post-conviction court found that it was not likely that any objection, even

       followed with an admonishment, “would have led to a different result in the

       trial.” Appellant’s App. at 115 (Conclusion No. 9). Hooks argues that the

       correct standard is whether Hooks established by a preponderance of the

       evidence that there was a “reasonable probability” of a different result but for

       counsel’s deficient conduct. Appellant’s Br. at 23. We reject Hooks’s claim that

       the trial court utilized an improper standard. The post-conviction court’s order

       expressly recognized, and indeed defined, the “reasonable probability”


       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 16 of 18
       standard. Appellant’s App. at 114. After reviewing the post-conviction court’s

       order as a whole, we find that Hooks’s reliance upon the singular phrase

       “would have led to a different result in the trial” does not consider the full

       context of the post-conviction court’s decision, and we are satisfied that the

       post-conviction court applied the proper standard when reaching its decision.


[26]   The State concedes that it was inappropriate for the prosecutor to have

       remarked that the children’s trial testimony matched their statements to police

       because the substance of those statements was not in evidence. However, the

       State asserts, and we agree, “just because a matter is objectionable does not

       mean that it constitutes deficient performance not to object.” Appellee’s Br. at

       21. Here, Bohleber testified at the post-conviction hearing that he rarely objects

       during a closing argument because (1) closing arguments of counsel are not

       evidence, which the jury is told, and the jury is equipped to “sort out the facts,”

       and (2) in his opinion, objections at that stage are “rude and intrusive,” and,

       further, objections during closing argument are often counterproductive and

       create a risk of alienating jurors. PCR Tr. at 77-79. He explained, in his

       experience and opinion, an objection may draw more attention to any certain

       comment by opposing counsel and, further, might appear to the jury as if

       counsel is trying to hide something.


[27]   It is not our job to second-guess trial counsel’s strategy and tactics, or suggest

       whether some other course would have been better. We are to determine

       whether the post-conviction court’s determination as to ineffectiveness, which

       assessed whether the representation was deficient and/or prejudicial, was

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 17 of 18
       clearly erroneous. Here, we find no error with the post-conviction court’s

       determination that error, if any, for not objecting to the prosecutor’s

       “inappropriate” commentary (regarding the girls’ testimony as being consistent

       with their statements to police) was not prejudicial to Hooks. I.W. and C.H.

       gave consistent and detailed testimony about the acts perpetrated by Hooks

       against them. The jury was aware that the girls had spoken with police. We

       are not persuaded that the jury would not have believed their testimony but for

       the prosecutor’s argument in closing that the girls’ trial testimony was

       consistent with what they said during police interviews. Given the record

       before us, we find no reasonable probability that but for the alleged error, i.e.,

       not objecting, the result of the proceeding would have been different.


[28]   The State maintains that counsel’s performance, as a whole, was not deficient,

       particularly given that trial counsel succeeded in having three Class A felonies

       removed from the jury’s consideration. While we agree that this was

       commendable, it was still appropriate that we examine the specific complaints

       raised by Hooks regarding trial counsel’s performance. Having done so, we

       conclude that Hooks has failed to carry his burden to show that the evidence as

       a whole leads unerringly and unmistakably to a conclusion opposite that

       reached by the post-conviction court. Therefore, we affirm the post-conviction

       court’s judgment.


[29]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015   Page 18 of 18
