MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jun 19 2018, 8:00 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
A. David Hutson                                          Curtis T. Hill, Jr.
Hutson Legal                                             Attorney General
Jeffersonville, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert M. Nolan,                                         June 19, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         22A01-1708-PC-1816
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         22D03-1401-PC-1



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018           Page 1 of 28
                                             Case Summary
[1]   Robert M. Nolan appeals the denial of his petition for post-conviction relief.

      He contends that the post-conviction court clearly erred in determining that he

      failed to demonstrate that he received the ineffective assistance of trial and

      appellate counsel. Nolan further asserts that he is entitled to a new trial based

      on newly discovered evidence. Concluding that Nolan has not met his burden

      to prove that he received ineffective assistance, and further concluding that

      Nolan’s claim of newly discovered evidence is unavailing, we affirm.


                                 Facts and Procedural History
[2]   The underlying facts as recited by another panel of this Court on direct appeal

      follow:


              Nolan and Shannon Nolan (Mother) were married in 2001.
              Mother had three minor daughters from a prior marriage,
              K.F.D., M.D., and K.D. Nolan and Mother had a biological
              daughter, M.C.D. The family lived in Ohio until the end of 2004
              and then moved to Floyd County, Indiana.

              Nolan was a chiropractor and Mother was a nurse. The children
              were often in Nolan’s care while Mother worked. Mother had no
              reservations about leaving her children with Nolan. Nolan took
              K.D. on fishing trips alone, and K.D. periodically worked at
              Nolan’s office.

              In 2005, M.D. moved out of the bedroom she shared with
              K.F.D., who was thirteen years old at the time. Nolan began
              fondling K.F.D.’s body, touching her breasts and genitals, and
              kissing her. Nolan complimented K.F.D.’s body, told K.F.D.
              that he loved her, and said that he wished he could have married

      Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 2 of 28
        her instead of Mother.

        Nolan told K.F.D. about oral sex and taught her how to perform
        oral sex. On January 1, 2008, Nolan took K.F.D. to her room
        and the two performed oral sex on each other. On February 14,
        2008, Nolan asked K.F.D. to perform oral sex on him while in
        K.F.D.’s bedroom and ejaculated in her mouth. The degree of
        sexual activity escalated as Nolan told K.F.D. that he wanted to
        have intercourse with her as well. Sometime between November
        2008 to March 2009, Nolan and K.F.D. were in her bedroom.
        K.F.D.’s pants were off and Nolan began grabbing her knees.
        K.F.D. refused but Nolan insisted that he wanted to have
        intercourse. Nolan managed to slightly penetrate K.F.D.’s
        vagina. K.F.D. told Nolan that it hurt and Nolan expressed
        surprise.

        K.F.D. was confused about her feelings toward Nolan. Although
        she believed that Nolan loved her as a girlfriend, K.F.D.
        considered him to be her stepfather. K.F.D. wrote a letter to
        Nolan beginning with, “[g]ood morning my love. I wanted to let
        you know that I love you with all my heart.” The letter ended
        with K.F.D.’s good wishes for an upcoming fishing trip. K.F.D.
        also gave a birthday card to Nolan in 2007 stating that “I love
        you with all my heart.” Prior to May 2009, K.F.D. wrote a letter
        to Nolan describing her feelings toward him. In the letter, K.F.D.
        stated that “[w]hat has happened should have never happened
        and it needs to stop. I think I am just as guilty as you. Even when
        I knew it was wrong and it hurt, I still let it go [ ... ]. I know that
        this is wrong and that’s why you wanted it kept a secret.”

        On May 20, 2009, Mother filed a petition for legal separation
        against Nolan. Later that evening, Mother was alone with
        K.F.D. and M.D. Mother asked them what they thought. K.F.D.
        revealed her sexual activities with Nolan. Mother listened until
        Nolan returned, then sent K.F.D. to her room. After greeting
        Nolan, Mother returned to K.F.D.’s room and listened to further
        details. K.F.D. indicated that she was reluctant to come forward

Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 3 of 28
        for fear of breaking up the family. Mother locked K.F.D. in her
        room and confronted Nolan who denied the allegations. That
        same day Mother called the police. Officer Jason Kerber of the
        Floyd County Police Department (Officer Kerber) responded and
        Mother informed him that Nolan had molested K.F.D. since she
        was a child. K.F.D. told Officer Kerber that she felt guilt and had
        not revealed the allegations in order to preserve the family.
        Detective Jeff Firkins of the Floyd County Police Department
        (Detective Firkins) interviewed Nolan at the police station.
        Again, Nolan denied the allegations. A forensic interviewer met
        with K.F.D., K.D., and M.D. K.F.D. repeated her allegations
        against Nolan. Although K.D. did not make allegations against
        Nolan, M.D. alleged that Nolan had fondled her.

        On July 8, 2009, the State filed an Information charging Nolan
        with the following: Count I, child molesting, a Class C felony,
        I.C. § 35-42-4-3(b); Counts II and III, child seduction, Class D
        felonies, I.C. § 35-42-4-7(h)(1); and Count IV, rape, a Class B
        felony, I.C. § 35-42-4-1(a)(1).[] Prior to trial, Nolan filed a
        motion in limine under Ind. Evid. Rule 404(b) to prohibit any
        reference to allegations that he fondled M.D. The trial court
        granted the motion in limine subject to an offer of proof at a
        subsequent hearing or during trial. The State did not make an
        offer of proof and the matter proceeded to trial.

        On June 28, 2010, a jury trial was held. The jury found Nolan
        guilty as charged on all Counts. On August 6, 2010, the trial
        court sentenced Nolan to eight years with two years suspended
        on Count I; three years with one year suspended each on Counts
        II and III; and sixteen years with four years suspended on Count
        IV. The trial court ordered all sentences to run consecutively.


Nolan v. State, No. 22A01-1007-CR-433, 2012 WL 456537, at *1-2 (Ind. Ct.

App. Feb. 14, 2012) (some citations omitted), trans. denied.



Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 4 of 28
[3]   On direct appeal, Nolan asserted that: (1) the trial court committed

      fundamental error in admitting certain evidence; (2) the testimony of witnesses

      corroborating the victim’s testimony constituted fundamental error; (3) the trial

      court abused its discretion in admitting evidence of his prior bad acts; and (4)

      his sentence was inappropriate. Id. We rejected his arguments and affirmed his

      convictions and sentence. Id. at 3.


[4]   Nolan filed a petition for post-conviction relief on January 27, 2014. In June of

      2014, Nolan also filed a petition for modification of his sentence. Following an

      evidentiary hearing, the trial court denied Nolan’s petition for modification of

      his sentence. Nolan appealed, and we affirmed the trial court’s denial of the

      petition to modify in a memorandum decision. Nolan v. State, No. 22A01-1503-

      CR-120, 2016 WL 1274125, at *1-2 (Ind. Ct. App. Mar. 31, 2016), trans. denied.


[5]   After several continuances, the post-conviction court held an evidentiary

      hearing on June 27, 2016. Thereafter, the post-conviction court entered its

      findings of fact, conclusions of law, and judgment denying Nolan’s request for

      post-conviction relief. This appeal ensued.1




      1
       Nolan has sent a voluminous handwritten pro se document to the Clerk of the Indiana Appellate Courts.
      He has been informed that the document has not been filed because he is represented by counsel. See
      Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000) (defendant speaks to court through counsel).



      Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018         Page 5 of 28
                                     Discussion and Decision
[6]   The petitioner in a post-conviction proceeding has the burden of establishing

      grounds for relief by a preponderance of the evidence. Ellis v. State, 67 N.E.3d

      643, 646 (Ind. 2017). When appealing 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, a petitioner must show that the

      evidence as a whole leads unerringly and unmistakably to a conclusion opposite

      that reached by the post-conviction court. Id. Where, as here, the post-

      conviction court makes findings of fact and conclusions of law as required by

      Indiana Post-Conviction Rule 1(6), we will reverse its findings only upon a

      finding of clear error, namely “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (citation omitted). We will not

      reweigh the evidence or judge the credibility of witnesses, and will consider

      only the probative evidence and reasonable inferences flowing therefrom that

      support the post-conviction court’s decision. Hinesley v. State, 999 N.E.2d 975,

      981 (Ind. Ct. App. 2013), trans. denied (2014).


             Section 1 – Nolan has not shown that his trial counsel
                         rendered ineffective assistance.
[7]   When evaluating an ineffective assistance of counsel claim, we apply the two-

      part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey

      v. State, 73 N.E.3d 677, 682 (Ind. 2017). “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

      Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 6 of 28
      defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.’” Id.

      (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

      second prong, the defendant must show prejudice. Id. To demonstrate

      prejudice from counsel’s deficient performance, a petitioner need only show “a

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

      the proceeding would have been different.” Middleton v. State, 72 N.E.3d 891,

      891-92 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is

      a probability sufficient to undermine confidence in the outcome.” Id.


[8]   Isolated poor strategy, inexperience, or bad tactics does not necessarily

      constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When

      considering a claim of ineffective assistance of counsel, we strongly presume

      “that counsel rendered adequate assistance and made all significant decisions in

      the exercise of reasonable professional judgment.” Id. (citation omitted). We

      presume that counsel performed effectively, and a defendant must offer strong

      and convincing evidence to overcome this presumption. Id.


[9]   We must acknowledge that the judge who presided over Nolan’s original trial is

      also the judge who presided over the post-conviction proceedings, and therefore

      the post-conviction court’s findings and judgment are entitled to “greater than

      usual deference.” Id. (quoting McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct.

      App. 2012), trans. denied (2013)). Indeed, we have explained that, in such a

      case, the judge is uniquely situated to assess whether trial counsel’s

      performance fell below an objective standard of reasonableness and whether,

      but for counsel’s unprofessional conduct, there was a reasonable probability

      Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 7 of 28
       that a different verdict would have been reached. Id. With this in mind, we turn

       to Nolan’s multiple claims of ineffective assistance of trial counsel.


                     Section 1.1 – Failure to communicate plea offer
[10]   Nolan first alleges that his trial counsel rendered ineffective assistance in failing

       to communicate to him a plea offer from the State. As a general matter,

       defense counsel has the duty to communicate to the defendant a formal plea

       offer from the State, and failure to do so constitutes deficient performance. Dew

       v. State, 843 N.E.2d 556, 569 (Ind. Ct. App. 2006), trans. denied. Here, although

       Nolan submitted an exhibit indicating that the State orally offered a plea deal to

       Nolan’s trial counsel,2 the only evidence that counsel failed to communicate

       that offer to Nolan comes from Nolan’s self-serving testimony. Nolan offered

       no affidavit or testimony from trial counsel to support his claim. When counsel

       is not called as a witness to testify in support of a petitioner’s arguments, the

       post-conviction court may infer that counsel would not have corroborated the




              2
                Petitioner’s Exhibit 8, “State’s Response to Petitioner’s Interrogatory #3 Plea Offers” provides
              in relevant part:

              1. That after reviewing its file, the State by its deputy prosecutor, Matthew Ely, conveyed
                        the following plea offer orally to Petitioner’s trial counsel:

                           Offer B felony rape 10 suspend 2 do 8 consecutive
                           C felony 4 suspend 1 do 3 consecutive
                           D felonies 18 months a piece suspend 6 months 24 months to serve
                           Total 17 years 4 years suspended do 13.
                           inv run concurrent
              2. That there is no evidence as to when the information in paragraph 1 was conveyed to
              Petitioner’s trial counsel.
       Ex. Vol. 2 at 44.



       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018                 Page 8 of 28
       petitioner’s allegations. Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App.

       2004) (citation omitted), trans. denied (2005). The post-conviction court did not

       find Nolan’s testimony on this matter credible and it is not our prerogative on

       appeal to second-guess that credibility determination. Hinesley, 999 N.E.2d at

       981. Nolan has failed to show that counsel failed to communicate the plea offer

       and that such failure constituted deficient performance.


[11]   Moreover, even if a defendant establishes deficient performance in counsel’s

       failure to convey a plea offer, the defendant must also establish prejudice. We

       have stated that a defendant satisfies the prejudice prong of Strickland if he

       shows that, but for counsel’s failure to communicate, there was a reasonable

       probability that he would have accepted the plea offer. Dew, 843 N.E.2d at 571.

       Nolan was unequivocal in his post-conviction testimony that he would not have

       accepted the plea offer even had it been communicated to him. As specifically

       noted by the post-conviction court, Nolan has consistently maintained his

       innocence throughout all proceedings, and he conceded that he would not have

       admitted to any inappropriate conduct with K.F.D. We agree with the post-

       conviction court that, under the circumstances, Nolan has demonstrated neither

       deficient performance nor prejudice.


            Section 1.2 – Failure to object to amendment of charging
                                   information
[12]   Nolan next contends that his trial counsel was ineffective in failing to object to

       the State’s “mid-trial” amendment to the charging information. Appellant’s Br.

       at 19. Count III of the original information charged Nolan with child seduction

       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 9 of 28
       occurring between December 27, 2008, and January 1, 2009. On the third day

       of trial, the State sought leave to amend the date of Count III to between

       December 27, 2007, and January 1, 2008. Trial counsel responded that he had

       “no objection” to the State’s request and explained that he learned during

       K.F.D.’s deposition in 2009 that she was originally “confused” as to the dates

       of the seduction and that counsel was on “constructive notice” as to the true

       dates. Direct Appeal Tr. Vol. 1. at 168. Later, just before calling his first

       defense witness, trial counsel further explained on the record,


               [the amendment] was not objected to by the defense as a trial
               strategy because in exchange for that, certain amounts of leeway
               were given with regard to the admissibility and weight of certain
               evidence that came in by way of not having witnesses here and
               submitting certified records in lieu of Rule 902. Therefore, that
               was a trial strategy employed by counsel in furtherance of his
               client’s defense.


       Direct Appeal Tr. Vol 2. at 345.


[13]   Where a claim of ineffective assistance is based on counsel’s failure to object,

       the petitioner must demonstrate that if an objection had been made, the trial

       court would have had no choice but to sustain it. Little v. State, 819 N.E.2d 496,

       506 (Ind. Ct. App. 2004), trans. denied. Indiana Code Section 35-34-1-5(c)

       provides that “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.” Nolan asserts that,


       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 10 of 28
       had his counsel objected, the trial court would have had no choice but to

       sustain the objection because the amendment prejudiced his substantial rights.


[14]   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, 405-06 (Ind. 2014)

       (citation omitted). The ultimate question is whether the defendant had a

       reasonable opportunity to prepare for and defend against the charges. Id. Here,

       as explained during trial, counsel was on notice of the time frame for the

       alleged child seduction and presumably prepared his presentation of evidence

       accordingly. Other than bald assertions of “possible alibis on the changed

       dates,” Nolan has not demonstrated how the State’s amendment prejudiced his

       substantial rights. Appellant’s Br. at 21. Thus, he has not established that if an

       objection had been made, the trial court would have had no choice but to

       sustain it. Little, 819 N.E.2d at 506. Nolan has failed to demonstrate that his

       counsel’s performance on this issue fell below an objective standard of

       reasonableness.


                          Section 1.3 – Failure to procure witness
[15]   Nolan contends his trial counsel rendered ineffective assistance in failing to

       properly subpoena and procure as a witness K.F.D.’s uncle, Brad Teeters.

       Teeters is a lawyer, and K.F.D. admitted that she spoke with Teeters before she

       submitted to her forensic interview with authorities. One of counsel’s defense

       theories was that K.F.D. was coached by Teeters as part of Mother’s plan to
       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 11 of 28
       frame and “set up” Nolan to gain an upper hand in their divorce. Appellant’s

       Br. at 23.


[16]   At the start of the fourth day of trial, trial counsel told the court that he had

       subpoenaed Teeters in Kentucky but that Teeters had not shown up, perhaps

       because he was now thought to be in South Carolina. Requesting to make an

       offer to prove, counsel explained,


               Your Honor, my first witness, uh, has to testify, part of his
               testimony contains 804 hearsay, um, and I want to do an offer of
               proof to the Judge to see if certain factors articulated in Rule 804-
               5 as to unavailability of a person as a witness to whom the
               (inaudible) will direct certain comments and testimony. In other
               words, it will be a conversation, or it will be testimony regarding
               a conversation that this witness had with Brad Teeters, who has
               been avoiding my subpoena to attend trial.


       Direct Appeal Tr. Vol. 2 at 346.


[17]   Counsel then called Nolan’s father to make an offer to prove regarding a

       conversation he had with Teeters. Nolan’s father said that he asked Teeters

       about what was “going to happen” with K.F.D.’s accusations against Nolan.

       Nolan’s father relayed that,


               [Teeters] said, well right now she’s accusing him of touching and
               oral sex and I said, what’s that mean? [Teeters] said, if he
               confesses to this and goes along with it we will try to get
               everything to go as easy as we can for him. If he doesn’t want to
               go to court, then if we can get penetration things will be bad.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 12 of 28
       Id. at 348. The trial court did not rule on whether Teeters was unavailable and

       took the matter under advisement. Trial counsel later informed the court

       during a sidebar that he had discovered that his assistant had never actually sent

       the subpoena to Teeters. He stated, “Therefore, as an officer of the Court[,] I

       have to represent to the Court that technically under the terms of the rules of

       evidence and the case law, that Brad Teeters is not unavailable.” Supp. Tr. Vol.

       2 at 303. Accordingly, Nolan’s father’s testimony was never presented to the

       jury.


[18]   Nolan argues that had Teeters testified at trial, “he may well have denied ever

       making those statements to [my father]. However, if trial counsel had

       subpoenaed [Teeters] to court and asked him if he ever made those statements,

       [my father] could have testified as to Teeters’[s] statements to him as

       impeachment.” Appellant’s Br. at 24. Nolan’s complaint boils down to

       counsel’s alleged inability to sufficiently put forth the defense theory that

       Teeters was part of Mother’s plan to frame and “set up” Nolan with false

       accusations.


[19]   We do not disagree with Nolan that counsel’s failure to properly subpoena

       Teeters and procure his attendance at trial was an unprofessional error.

       Counsel admitted as much to the trial court. However, we disagree with

       Nolan’s contention that there is a reasonable likelihood that, but for counsel’s

       failure to procure Teeters’s attendance, the result of the trial would have been

       different. Through the questioning of multiple other witnesses, including

       K.F.D., Mother, and forensic interviewer Jeri Newton, trial counsel was able to

       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 13 of 28
       sufficiently explore and repeatedly emphasize the theory that K.F.D. was

       coached by Teeters regarding what to accuse Nolan of doing to her.

       Nevertheless, the jury was not persuaded. Under the circumstances, we agree

       with the post-conviction court that Nolan has not shown that Teeters’s

       testimony (or impeachment thereof) on that same issue would have carried

       substantial weight against a finding of guilt for the offenses charged.

       Significantly, Nolan did not call Teeters as a witness at the post-conviction

       hearing, and did not submit an affidavit regarding what his testimony would

       have been had he testified. When ineffective assistance of counsel is alleged

       and premised on the attorney’s failure to present a witness, it is incumbent upon

       the petitioner to offer evidence as to who the witness was and what his

       testimony would have been. Lee v. State, 694 N.E.2d 719, 722 (Ind. 1998).

       Nolan has not met his burden of establishing grounds for relief on this claim.


                         Section 1.4 – Failure to move for mistrial
[20]   During trial, Mother testified regarding how K.F.D. first disclosed to her that

       Nolan had molested her. Mother stated that, on May 20, 2009, she came home

       from work and was speaking to her daughters because “there was an event that

       occurred, that particular day, and um, that event, my two oldest daughters were

       aware of that event.” Direct Appeal Tr. Vol. 1 at 187.3 When asked “[w]hat




       3
         Although Mother never referenced what the “event” was, Nolan asserts that she was obviously referring to
       the fact that the local newspaper published a story about pending charges against Nolan in Clark County.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018          Page 14 of 28
       did [K.F.D.] tell you, that occurred, between [her] and [Nolan,]” Mother

       testified that K.F.D. told her, “Mommy I know he’s guilty.” Id. at 189.


[21]   Nolan argues that Mother’s reference to “an event” clearly informed the jury

       that Nolan had committed another criminal act of the same nature as the acts

       K.F.D. alleged he committed against her. Because any reference to other

       criminal charges that had been filed against Nolan was prohibited by a motion

       in limine, Nolan argues that his trial counsel should have objected to Mother’s

       testimony and moved for a mistrial.


[22]   To prove ineffective assistance of counsel due to the failure to object and

       request a mistrial, Nolan must show that a request would have been granted

       had it been made. Cf. Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007)

       (stating that to prevail on claim of ineffective assistance due to failure to object

       to evidentiary harpoon, defendant must show objection would have been

       sustained if made), cert. denied (2008). A mistrial is an extreme remedy that is

       warranted only when no other curative action can be expected to remedy the

       situation. Lucio v. State, 907 N.E.2d 1008, 1010-11 (Ind. 2009). A mistrial is

       required only where the defendant was placed in a position of grave peril to

       which he should not have been subjected. Owens v. State, 937 N.E.2d 880, 895

       (Ind. Ct. App. 2010), trans. denied. The gravity of the peril is determined by the

       probable persuasive effect on the jury’s decision. Id.


[23]   Nolan has not shown that the trial court would have sustained his objection and

       granted a motion for mistrial even had trial counsel made such request.


       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 15 of 28
       Mother’s reference to “an event” was vague and made no mention of any

       criminal charges against Nolan. In fact, the deputy prosecutor carefully

       questioned Mother and repeatedly reminded her not to go into any specifics

       about the circumstances that prompted K.F.D. to disclose the molestation. We

       do not think Nolan was placed in a position of grave peril warranting a mistrial.


[24]   Moreover, as Mother’s reference to “an event” was vague as well as isolated,

       trial counsel would understandably not want to draw the jury’s attention to it by

       objecting and then moving for a mistrial. This was a reasonable tactical

       decision. A decision to not object when the objection may be more damaging

       than the evidence is within the wide range of professionally competent

       assistance. Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). Nolan

       has failed to show ineffective assistance on this issue.


                       Section 1.5 – Failure to object to testimony
[25]   Nolan also contends that trial counsel rendered ineffective assistance in failing

       to object to Mother’s testimony regarding his “kinky” sexual fantasies. Direct

       Appeal Tr. Vol. 1 at 230. He argues that Mother’s testimony “tended to paint

       him as a person with prurient sexual preferences that could have inflamed the

       jury’s passions against him.” Appellant’s Br. at 30. As we stated above, where

       a claim of ineffective assistance is based on counsel’s failure to object, the

       petitioner must demonstrate that if an objection had been made, the trial court

       would have had no choice but to sustain it. Little, 819 N.E.2d at 506. Nolan

       argues that the trial court would have had no choice but to sustain a proper

       Rule 403 objection to the testimony. See Ind. Evid. Rule 403 (“The court may
       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 16 of 28
       exclude relevant evidence if its probative value is substantially outweighed by a

       danger of … unfair prejudice.”). Regardless, our review of the record reveals

       that Mother’s testimony on this subject was incredibly brief and not as

       “salacious” as argued by Nolan. Appellant’s Br. at 31. We cannot conclude

       that there is a reasonable probability that the outcome of his five-day jury trial

       would have been different had counsel objected to this brief testimony.


[26]   Additionally, we agree with the State that it appears that trial counsel may have

       intentionally not objected to Mother’s testimony in this regard because he

       proceeded to impeach her on cross-examination with the dubious and

       hypocritical nature of her claims based on her own behavior during the parties’

       marriage. We cannot say that this strategy was unreasonable. Nolan has not

       overcome the presumption that counsel’s performance was adequate.


                       Section 1.6 – Failure to impeach witnesses
[27]   Nolan makes numerous arguments regarding his trial counsel’s alleged failure

       to adequately impeach various State witnesses. If a claim of ineffective

       assistance can be disposed of by analyzing the prejudice prong alone, we will do

       so. Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002). Thus, we decline to go into

       specific detail regarding the alleged deficiencies in trial counsel’s impeachment

       methods regarding several of these witnesses because, based on the cumulative

       and circumstantial nature of most of that testimony, Nolan cannot establish

       that any isolated omissions or errors, poor strategy, or bad tactics prejudiced

       him. However, we will address Nolan’s claims regarding counsel’s

       impeachment of the victim, K.F.D.
       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 17 of 28
[28]   Nolan asserts that his trial counsel failed to impeach K.F.D. and present

       evidence contradicting the timeline of her allegations in relation to the class C

       felony child molestation charge, which required the State to prove that K.F.D.

       was under fourteen years of age at the time. Specifically, Nolan argues that

       counsel could have introduced evidence of K.F.D.’s prior inconsistent

       statements to show that “her recollection of the date was equivocal.”

       Appellant’s Br. at 27. Nolan further asserts that trial counsel failed to impeach

       K.F.D. with her prior inconsistent statements regarding her claims of child

       seduction and rape.


[29]   Contrary to Nolan’s claims, our review of the record reveals that, on cross-

       examination, trial counsel specifically questioned K.F.D. regarding

       equivocations in her memory regarding her age at the time of the alleged

       molestation, as well as her prior inconsistent statements regarding the time

       frame and circumstances of the child seduction and the rape. Indeed, counsel’s

       cross-examination and attempted impeachment was very thorough yet

       appropriately sensitive to the nature of the charges and K.F.D.’s emotional

       demeanor. Despite these efforts, the fact remains that on direct examination,

       K.F.D. gave graphic testimony regarding Nolan’s repeated acts of sexual

       misconduct against her. In short, the jury found her to be a credible witness

       and Nolan has not established a reasonable probability that the result of his trial

       would have changed had counsel done anything differently during cross-

       examination.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 18 of 28
          Section 1.7 – Failure to present mitigating evidence during
                                   sentencing
[30]   Finally, Nolan challenges his trial counsel’s performance during the sentencing

       phase of his trial. Specifically, he complains that his counsel failed to proffer

       his education and steady employment as potential mitigating factors, and he

       asserts that had counsel done so, the trial court “likely” would have imposed a

       reduced sentence. Appellant’s Br. at 34. Nolan has made no such showing.


[31]   We note that evidence of Nolan’s education and work history was part of the

       pre-sentence investigation report that was already before the trial court and

       specifically referenced by trial counsel during sentencing. Direct Appeal Tr.

       Vol. 3 at 533 (“The, uh, Pre-Sentence Investigation is, is very, uh, clear on its

       face as to what the, uh, Defendant’s Story is.”). Trial counsel chose to focus on

       Nolan’s lack of criminal history as evidence in mitigation, and the trial court

       did find his lack of criminal history to be a mitigating factor. However, due to

       Nolan’s “despicable and contemptible” abuse of a position of trust, and the

       particularized circumstances of his crimes, the trial court found that the

       aggravating factors “far outweigh[ed]” the mitigating factor. Id. at 551. It is

       well settled that a “trial court is not obligated to find the existence of mitigating

       circumstances, nor is it required to give the same credit as the defendant does to

       the defendant’s proffered mitigating circumstances.” Singer v. State, 674 N.E.2d

       11, 14 (Ind. Ct. App. 1996). Based on the record before us, we are confident

       that the trial court would have given, at most, minimal weight, to Nolan’s

       suggested mitigating factors. Nolan has not demonstrated a reasonable


       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 19 of 28
       probability that the trial court would have imposed a shorter sentence had trial

       counsel proffered his education and work history as mitigating factors. We

       agree with the post-conviction court that Nolan has not shown that he was

       denied the effective assistance of trial counsel.


          Section 2 – Nolan has not shown that his appellate counsel
                       rendered ineffective assistance.
[32]   Along with the many alleged failures of his trial counsel, Nolan also contends

       that his appellate counsel rendered ineffective assistance. Claims of ineffective

       assistance of appellate counsel are reviewed using the same standard applicable

       to claims of trial counsel ineffectiveness. Garrett v. State, 992 N.E.2d 710, 719

       (Ind. 2013). These claims generally fall into three categories: (1) denial of access

       to an appeal; (2) waiver of issues; and (3) failure to present issues well.

       Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014). A claim of failure to present

       an issue well, as Nolan asserts here, is the most difficult for a defendant to

       advance and for a reviewing tribunal to support. Id. This is “because such

       claims essentially require the reviewing court to reexamine and take another

       look at specific issues it has already adjudicated” to determine if a new

       argument would have had “any marginal effect” on its previous decision. Id.


[33]   Nolan argues that, in challenging the propriety of his sentence on direct appeal,

       appellate counsel should have argued that the trial court relied on improper

       aggravating circumstances. Specifically, the trial court found two aggravating

       circumstances: (1) the nature and circumstances of the crimes and the duration

       of the sexual abuse; and (2) that Nolan was in a position of care, custody, or

       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 20 of 28
       control of K.F.D. These are both proper aggravators. See Phipps v. State, 90

       N.E.3d 1190, 1198 (Ind. 2018) (acknowledging that “the particular facts—the

       ongoing nature and length of [the] criminal conduct—can properly be

       considered in aggravation”); Bacher v. State, 722 N.E.2d 799, 802 n.5 (stating

       that being in a “position of trust” with the victim is a valid aggravating

       circumstance). Nolan cannot show that appellate counsel was ineffective for

       not challenging the trial court’s sentencing decision on this basis.


[34]   Nolan also complains that, in arguing for sentence revision pursuant to Indiana

       Appellate Rule 7(B), his appellate counsel pointed only to his lack of criminal

       history as evidence of his good character, and that counsel should have pointed

       out additional positive evidence of his character. However, Nolan has not

       persuaded us that, had appellate counsel highlighted his education, work

       history, and his mother’s opinion that he was “kind hearted” and not a “danger

       to society,” it would have had even a marginal effect on this Court’s previous

       decision. Appellant’s Br. at 39. Indeed, in reviewing his character, the panel

       looked to additional evidence in the record regarding Nolan’s character and

       determined that he was known to be a “master manipulator” and a “liar.”

       Nolan, slip op. at 8 (direct appeal). Accordingly, we do not think that, even had

       his counsel belabored arguments as to Nolan’s good character, there is a

       reasonable probability that this Court would have revised his sentence.


[35]   Nolan maintains that his appellate counsel also should have argued that the

       imposition of maximum and enhanced sentences on several counts was

       unwarranted because he was not the “worst of the worst.” Appellant’s Br. at

       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 21 of 28
       40. The record indicates that counsel did argue that enhanced and consecutive

       sentences were unwarranted, and we specifically rejected those arguments.

       Moreover, the appropriateness of Nolan’s aggregate sentence was thoroughly

       reviewed and determined to be appropriate on direct appeal, with the panel

       essentially concluding that Nolan was, in fact, one of the worst offenders, in

       that he appeared “to have groomed K.F.D. over a five-year period to submit to

       his sexual desires…. The mental and emotional effect of such acts upon K.F.D.

       cannot be minimized.” Nolan, slip op. at 8 (direct appeal) (record citation

       omitted). Under the circumstances, Nolan has not established that his appellate

       counsel performed deficiently. The post-conviction court properly concluded

       that Nolan was not denied the effective assistance of appellate counsel.


       Section 3 – Nolan is not entitled to a new trial based on newly
                            discovered evidence.
[36]   Finally, Nolan argues that he is entitled to post-conviction relief and a new trial

       based on newly discovered evidence. He asserts that although “clearly raised”

       in his petition for post-conviction relief, and “argued” in his proposed findings

       of fact and conclusions of law, the post-conviction court failed to address his

       newly discovered evidence claims in its findings. Appellant’s Br. at 40-41. It

       does appear that the post-conviction court failed to specifically address the

       newly discovered evidence claims in its findings, and we believe that Nolan is

       entitled to be heard and receive a ruling on this issue. See Hanks v. State, 71

       N.E.3d 1178, 1189 (Ind. Ct. App. 2017). Although a court errs in failing to

       enter specific findings of fact and conclusions of law on all issues raised in a


       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 22 of 28
       petition for post-conviction relief, such error is not reversible when the issue is

       sufficiently presented for review and addressed by the parties. Jackson v. State,

       676 N.E.2d 745, 750 (Ind. Ct. App. 1997), trans. denied; see also Lowe v. State, 455

       N.E.2d 1126, 1128 (Ind. 1983) (in interest of judicial economy “we shall make

       an ultimate determination of the arguments as raised … rather than remand to

       the trial court for further findings.”) (quoting Sims v. State, 422 N.E.2d 436, 438

       (Ind. Ct. App. 1981)). The issue here is sufficiently presented for our review,

       and therefore, rather than remand to the post-conviction court, we will address

       Nolan’s claims of newly discovered evidence.


[37]   Post-Conviction Rule 1(1)(a)(4) provides that post-conviction relief is available

       to any “person who has been convicted of, or sentenced for, a crime by a court

       of this state, and who claims” that “there exists evidence of material facts, not

       previously presented and heard, that requires vacation of the conviction or

       sentence in the interest of justice.” Newly-discovered evidence mandates a new

       trial only when the defendant demonstrates each of the following nine

       requirements:


               (1) the evidence has been discovered since the trial; (2) it is
               material and relevant; (3) it is not cumulative; (4) it is not merely
               impeaching; (5) it is not privileged or incompetent; (6) due
               diligence was used to discover it in time for trial; (7) the evidence
               is worthy of credit; (8) it can be produced upon a retrial of the
               case; and (9) it will probably produce a different result at retrial.


       Bunch v. State, 964 N.E.2d 274, 283 (Ind. Ct. App. 2012) (citation omitted).

       “The reviewing court ‘analyzes these nine factors with care, as the basis for

       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 23 of 28
       newly discovered evidence should be received with great caution and the

       alleged new evidence carefully scrutinized.’” Id. (quoting Taylor v. State, 840

       N.E.2d 324, 329-30 (Ind. 2006)). The burden to show all nine requirements

       rests with the post-conviction petitioner. Id. During the post-conviction

       proceedings, Nolan made three claims of newly discovered evidence that he

       argued entitles him to a new trial; (1) phone records; (2) a receipt; and (3)

       medical records. As we will discuss in more detail below, his arguments fail

       with respect to all three.


                        Section 3.1 – Affidavit and phone records
[38]   Nolan first contends that Shea Leffler’s affidavit and accompanying phone

       records constitute newly discovered evidence entitling him to a new trial. At

       trial, Leffler testified that she went to the police station to report that Mother

       was framing Nolan for the crimes against K.F.D. Leffler stated that she left a

       message at the station asking the detectives to call her. Leffler testified that a

       person identifying himself as Detective Powell called her the following day, and

       she reported to him that Mother was having an extramarital affair and was

       framing Nolan. Detective Powell allegedly told Leffler to “stay out of it.”

       Appellant’s App. Vol. 4 at 178. In response, the State recalled the lead

       detective on the case, Detective Firkins, as a rebuttal witness, and he testified

       that he, as opposed to Detective Powell, spoke with Leffler. He stated that

       Leffler told him that Mother was “dating other people” but that Leffler did not

       say anything about Mother framing Nolan for the crimes. Direct Appeal Tr.

       Vol. 2 at 443.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 24 of 28
[39]   During the post-conviction proceedings, Nolan submitted an affidavit from

       Leffler with phone records attached. Leffler averred that incoming “call 283”

       listed on the records, which was received on December 16, 2009, was a call she

       received from Detective Powell and not from Detective Firkins. Nolan claims

       that Leffler’s affidavit and the phone records about which detective she spoke

       with is crucial evidence to rehabilitate Leffler’s credibility and to lend “support

       to [his] theory that the allegations against him were made-up.” Appellant’s Br.

       at 44.


[40]   However, Nolan has not shown that the affidavit and accompanying phone

       records meet the necessary criteria for newly discovered evidence. Indeed,

       Nolan’s sole assertion is that the evidence would be used to rehabilitate Leffler’s

       credibility and to impeach Detective Firkins’s rebuttal testimony regarding

       which detective Leffler spoke with. To warrant a new trial, newly discovered

       evidence cannot be merely impeaching. Thompson v. State, 796 N.E.2d 834, 840

       (Ind. Ct. App. 2003), trans. denied (2004). This newly discovered evidence claim

       fails.


                                         Section 3.2 – Receipt
[41]   Nolan’s next claim of newly discovered evidence involves an alleged “receipt.”

       Appellant’s Br. at 44. Nolan was convicted of class C felony child molesting,

       an element of which is that the victim is under fourteen years of age. Ind. Code

       § 35-42-4-3(b). K.F.D. testified that Nolan molested her around the start of

       school in August of 2005, and she recalled that the molestation occurred after

       her home’s basement remodel was finished because that was around the time
       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 25 of 28
       her sister had moved out of the bedroom they shared and into the basement.

       K.F.D. turned fourteen on October 24, 2005. During the post-conviction

       hearing, Nolan’s father testified that he performed electrical work on the

       basement of the home. He produced a handwritten note, which he referred to

       as a “receipt,” dated November 11, 2005, that he said that he “got from Robert

       C. Brown” for “the fuse box—the breaker box for [Nolan’s] basement.” PCR

       Tr. Vol. 2 at 25. Nolan argues that this evidence shows that the basement was

       not finished until after K.F.D. was fourteen years of age, and therefore he

       cannot be guilty of class C felony child molesting.


[42]   We agree with the State that Nolan has not met his burden to show that this

       evidence is worthy of credit. Nolan’s father is not a disinterested witness, and

       Nolan produced no witness at the post-conviction hearing that could verify the

       authenticity of the note, including its date. Contrary to Nolan’s assertion, it

       was not the State’s burden to challenge the authenticity of the note; it was his

       burden to demonstrate its authenticity and that it is worthy of credit. He failed

       to do so. Moreover, while the note may have called into question K.F.D.’s

       recollection regarding the status of the basement remodel at the time of the

       molestation, evidence that simply calls prior testimony into question does not

       amount to newly discovered evidence that requires a new trial. Cf. State v.

       McCraney, 719 N.E.2d 1187, 1190 (Ind. 1999) (determining that witness’s

       complete recantation of prior testimony was more than impeaching because it

       was freestanding evidence of innocence that obliterated the witness’s own prior,

       inculpatory testimony). This newly discovered evidence claim also fails.


       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 26 of 28
                                  Section 3.3 – Medical records
[43]   Nolan’s final claim of newly discovered evidence involves certified medical

       records which reveal that Mother was discharged from the hospital at 1:50 p.m.

       on January 1, 2008. K.F.D. testified at trial that Nolan forced her to perform or

       submit to oral sex on January 1, 2008, while Mother was in the hospital. He

       argues that evidence of the discharge time and date is material and relevant

       because it renders it “unlikely” that he forced K.F.D. to perform or submit to

       oral sex on that date after Mother was discharged and returned home.

       Appellant’s Br. at 52. However, this evidence does not foreclose the possibility

       that Nolan forced K.F.D. to perform or submit to oral sex on that date before

       Mother was discharged, which would be entirely consistent with K.F.D.’s

       testimony. Thus, the medical records are hardly the smoking gun of reasonable

       doubt that Nolan hopes they are.


[44]   In sum, Nolan has not shown that the medical records, or any of his other

       claimed newly discovered evidence, will probably produce a different result at

       retrial. “[T]he defendant must raise a strong presumption that the result at any

       subsequent trial in all probability would be different.” Reed v. State, 702 N.E.2d

       685, 691 (Ind. 1998). “A sufficient probability of a different result upon retrial

       is present where the omitted evidence creates a reasonable doubt that did not

       otherwise exist.” Fox v. State, 568 N.E.2d 1006, 1008 (Ind. 1991). We cannot

       say that any of Nolan’s claimed newly discovered evidence creates reasonable

       doubt that did not otherwise exist. Therefore, Nolan has not demonstrated that



       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 27 of 28
       he is entitled to a new trial. In light of the foregoing, we affirm the post-

       conviction court’s denial of Nolan’s petition for relief.


[45]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1708-PC-1816 | June 19, 2018   Page 28 of 28
