Pursuant to Ind.Appellate Rule 65(D),

                                                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                               Mar 16 2012, 9:10 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                          CLERK
                                                                        of the supreme court,
                                                                        court of appeals and
                                                                               tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER                            GREGORY F. ZOELLER
Appellate Public Defender                         Attorney General of Indiana
Crown Point, Indiana
                                                  MARJORIE LAWYER-SMITH
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

REBECCA A. THIELING,                              )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 45A03-1108-CR-344
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Thomas P. Stefaniak, Jr., Judge
                              Cause No. 45G04-1004-FC-32



                                        March 16, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                STATEMENT OF THE CASE

       Rebecca Thieling appeals her convictions for forgery, a Class C felony; auto theft,

as a Class D felony; and theft, as a Class D felony, following a jury trial. Thieling

presents a single issue for our review, namely, whether she was denied the effective

assistance of trial counsel.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       In 2009, Thieling and her boyfriend, Christopher Dobson, were living together at

Thieling’s mother’s home in Merrillville.          Among his personal belongings, Dobson

owned a 2001 Suzuki motorcycle, which he kept in the garage. One morning in October

2009, Dobson entered the garage and found that someone had damaged his motorcycle.

The seats and several cables had been cut, there was sugar in the gas tank, and the

odometer was “destroyed.” Transcript at 27. Dobson “was told” that Thieling had

caused the damage to his motorcycle after Thieling became suspicious that Dobson was

dating another woman.          Id. at 28.   Accordingly, Dobson moved out of Thieling’s

mother’s home.      But Dobson left several personal belongings behind, including the

damaged motorcycle.

       In December 2009, Thieling met Carl Collins at a bar in Gary. After talking

awhile, Thieling offered to sell Collins a motorcycle. Thieling explained to Collins that

the motorcycle was “trashed,” and Collins got the impression that Thieling was the one

who had caused the damage. Id. at 77. Collins ultimately bought the motorcycle from




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Thieling for $200, and Thieling gave Collins the title,1 ostensibly signed by Dobson.

Dobson has since denied having signed his name to the title.

       A few months later, Dobson learned that Thieling had sold his motorcycle without

his consent, so he filed a police report. In the course of the investigation, the police

confiscated the motorcycle. Collins called Thieling and told her about the confiscation,

and Thieling told Collins to tell the police that he had “bought it from some guy in a bar.”

Id. at 93. But Collins told police that he had bought the motorcycle from Thieling.

       The State charged Thieling with forgery, for allegedly forging Dobson’s name on

the title; auto theft, for depriving Dobson of the motorcycle’s value or use; and theft, for

taking $200 from Collins for the stolen motorcycle. A jury found Thieling guilty as

charged. The trial court entered judgment and sentence accordingly. This appeal ensued.

                               DISCUSSION AND DECISION

       Thieling contends that she was denied the effective assistance of trial counsel. In

particular, Thieling maintains that: (1) her trial counsel should have pointed out to the

jurors that the prosecutor made a comment during opening statement that was not

supported by the evidence; (2) her trial counsel should have objected to certain testimony

by Dobson; and (3) her trial counsel should have objected to alleged hearsay. We address

each contention in turn.

       There is a strong presumption that counsel rendered effective assistance and made

all significant decisions in the exercise of reasonable professional judgment, and the

burden falls on the defendant to overcome that presumption. Johnson v. State, 901


       1
          The record shows that Thieling owed Mike Pahkanen some money, so Collins gave Pahkanen
the $200 for the motorcycle, and Thieling gave the title to Pahkanen, who, in turn, gave it to Collins.
                                                  3
N.E.2d 1168, 1173 (Ind. Ct. App. 2009). To make a successful ineffective assistance

claim, a defendant must show that: (1) his attorney’s performance fell below an objective

standard of reasonableness as determined by prevailing professional norms; and (2) the

lack of reasonable representation prejudiced him. Id. Even if a defendant establishes that

his attorney’s acts or omissions were outside the wide range of competent professional

assistance, he must also establish that, but for counsel’s errors, there is a reasonable

probability that the result of the proceeding would have been different. Id. at 1174. To

establish ineffective assistance for counsel’s failure to object, a petitioner must show that

the trial court would have sustained the objection had it been made and that the petitioner

was prejudiced by the failure to object. Jones v. State, 847 N.E.2d 190, 197-98 (Ind. Ct.

App. 2006) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied,

535 U.S. 1019 (2002)), trans. denied.         Stated another way, the petitioner must

demonstrate that, had the objection been made, the trial court would have had no choice

but to sustain it. Oglesby v. State, 515 N.E.2d 1082, 1084 (Ind. 1987).

                                   Opening Statement

       During his opening statement, the prosecutor “indicated that Thieling [had]

received a phone call informing her that Dobson was out with another girl.” Brief of

Appellant at 7. On appeal, Thieling maintains that “no facts were ever presented to

support this” and her attorney “never pointed to the jury [sic] that there was no evidence

to support the prosecution’s alleged motive.”        Id.   Thieling does not support this

contention with citation to the record or relevant legal authority. Regardless, Dobson

testified that he was told that “the reason why the motorcycle got destroyed” was because


                                             4
Thieling had “confronted [him] about dating another girl[.]” Transcript at 28. Whether

Thieling learned that information through a phone call or otherwise is of no moment.

Thieling has not demonstrated that she suffered any prejudice by her attorney’s failure to

inform the jury regarding this alleged lack of evidence.

                                    Dobson’s Testimony

       Thieling next contends that her attorney should have made an objection under

Evidence Rule 704(b) to the following testimony by Dobson:

       Q:     At this time, did you form an opinion as to who [caused the damage]
              to your bike?

       A:     No, I know who did it.

       Q:     How did you know?

       A:     I just knew that. I don’t know. I just knew that it was [Thieling]. I
              don’t know who else could have possibly done it.

Transcript at 27-28. Evidence Rule 704(b) provides in relevant part that a witness is

prohibited from testifying to opinions concerning guilt in a criminal case. Here, however,

Thieling was not charged with having caused damage to Dobson’s motorcycle. Thus, the

Rule does not apply to this testimony, and Thieling has not demonstrated that any

objection to that testimony would have been sustained.

                                          Hearsay

       Finally, Thieling contends that her attorney should have objected to the following

testimony by a police officer at trial:

       Q:     And what was contained in the report? What did he report to you?




                                             5
        A:    [Dobson] advised that he had left his motorcycle and some other
              personal belongings at his ex girlfriend’s house. And that she had
              sold the bike to one of his friends after she damaged it.

Transcript at 132.     On appeal, Thieling asserts that that testimony was “clearly

inadmissible as hearsay pursuant to Rule 801 of the Indiana Rules of Evidence and

constituted additional emphasis on Dobson’s inadmissible opinion.” Brief of Appellant

at 8.

        A defendant is not prejudiced by the erroneous admission of hearsay evidence if it

is cumulative of other, properly admitted evidence. See Robinson v. State, 693 N.E.2d

548, 553 (Ind. 1998). Here, the police officer’s testimony was merely cumulative of

Dobson’s and Collins’ testimony on these issues. Further, Thieling’s attorney admitted

into evidence the police report itself, which includes the alleged hearsay. Thieling has

not demonstrated prejudice to her substantial rights as a result of her attorney’s failure to

object to the challenged testimony. See Trial Rule 61; Ind. Appellate Rule 66.

        In sum, Thieling has not demonstrated that her attorney’s performance fell below

an objective standard of reasonableness as determined by prevailing professional norms,

nor has she shown any prejudice as a result of her attorney’s alleged omissions. We hold

that Thieling was not denied the effective assistance of trial counsel.

        Affirmed.

ROBB, C.J., and VAIDIK, J., concur.




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