MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Jul 18 2018, 9:39 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Anne Murray Burgess                                      Ian McLean
Deputy Public Defender                                   Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua D. Preston,                                       July 18, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         35A04-1711-PC-2727
        v.                                               Appeal from the
                                                         Huntington Circuit Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Thomas Hakes, Judge.
                                                         Trial Court Cause No.
                                                         35C01-1303-PC-3



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A04-1711-PC-2727 | July 18, 2018            Page 1 of 17
After his convictions for neglect of a dependent and battery were affirmed on

direct appeal, Joshua D. Preston (“Preston”) filed a petition for post-conviction

relief, which the post-conviction court denied. Preston now appeals and raises

the following restated issues:


        I.       Whether the post-conviction court erred when it found
                 that his trial counsel did not provide ineffective assistance
                 when counsel did not hire an expert to support Preston’s
                 version of events, that N.B. sustained accidental impact
                 injury; and


        II.      Whether the post-conviction court erred when it found
                 that studies published since 2012, which assisted Preston’s
                 expert in forming his opinions, did not constitute newly
                 discovered evidence.


We affirm.


                            Facts and Procedural History
The facts supporting Preston’s convictions as set forth by this court on his direct

appeal are as follows:


        In early August 2010, Preston was babysitting N.B., the eight-
        month-old child of his girlfriend, Michelle Bowling (“Bowling”).
        Preston told Bowling that N.B. had fallen off his lap and hit her
        head on a television stand. Bowling observed a rug burn on
        N.B.’s head and some bruising across her ear. Around this same
        time, Bowling also observed that N.B. had stopped crawling.
        Bowling took N.B. to the hospital and the doctor informed her
        that N.B. had stopped crawling due to the ear infection she was
        experiencing at the time, because it was affecting her equilibrium.


Court of Appeals of Indiana | Memorandum Decision 35A04-1711-PC-2727 | July 18, 2018   Page 2 of 17
        In early September 2010, Preston was experiencing withdrawal
        from the methadone pills that he had previously been using
        without a prescription. Therefore, from September 4-6, 2010, he
        was too sick to help Bowling move into their home, and she
        testified that he was irritable and grouchy during that period of
        withdrawal.


        On September 7, 2010, Bowling left N.B. with Preston while she
        went to the store, even though Preston still looked pale and had
        vomited earlier that day. While Bowling was away, Preston
        called her and told her that N.B. had fallen off the couch and was
        crying uncontrollably, but he then called Bowling back to tell her
        N.B. was doing better. However, for several hours after
        Bowling’s return, N.B. was vomiting and lethargic. Later that
        night, Bowling called the doctor. The nurse advised Bowling to
        continue to monitor N.B. and to take her to the hospital if the
        vomiting did not cease.


        Bowling suggested to Preston that they should take N.B. to the
        hospital but Preston told Bowling not to take N.B. because he
        would be accused of child abuse. Tr. at 463. Nonetheless,
        Bowling, on her own, took N.B. to Parkview Huntington
        Emergency Room. Bowling relayed to the emergency room
        doctors Preston’s story that N.B. had fallen off the couch, and
        after performing a CT scan, doctors released N.B. and told
        Bowling to give N.B. Tylenol and to put ice on her head. During
        the day on September 8, 2010, N.B. appeared lethargic, was still
        throwing up, and would not eat. Tr. at 467. As the day
        progressed, N.B. seemed to improve.


        On September 9, 2010, N.B. seemed to be doing better. Bowling
        left N.B. with Preston while she went with her stepsister to apply
        for a new job. While Bowling was away, Preston called
        Bowling’s stepsister’s phone and was screaming N.B.’s name
        repeatedly, but Bowling and her stepsister could not discern what
        was wrong. Preston then ran out onto his porch holding N.B.
Court of Appeals of Indiana | Memorandum Decision 35A04-1711-PC-2727 | July 18, 2018   Page 3 of 17
        and shouting N.B.’s name. A stranger passing by, Andrew
        Delagrange (“Delagrange”) saw Preston out on his porch,
        holding N.B. Delagrange asked if he could help, and he told
        Preston to call 911. When the paramedics arrived at the home,
        nine-month-old N.B. was pale, unresponsive to stimuli, her eyes
        were wide open with no pupillary response, and she was having
        irregular and shallow breathing. State’s Ex. 2. They also
        observed a dime sized greenish bruise on her right forehead and
        blood in her nose. Preston told the paramedics that N.B. had
        rolled off the couch and was unresponsive.


        N.B. was flown by helicopter to Parkview Hospital in Fort
        Wayne. Dr. Jayesh Patel (“Dr. Patel”), medical director of the
        pediatric intensive care unit, initially diagnosed N.B. with a
        significant cerebral concussion. After more tests and
        consultation with other doctors, he concluded N.B.’s symptoms
        were not consistent with a fall off a couch and he diagnosed her
        with “shaken baby syndrome[.]” Tr. at 391, 393. Dr. Jeffrey
        Bessette (“Dr. Bessette”), a diagnostic radiologist, conducted a
        CT scan and a MRI scan of N.B.’s brain and observed a subdural
        hematoma. He also reviewed the CT scan from September 7,
        2010 and discovered that the subdural hematoma was already
        present on that day. He also observed a fracture on N.B.’s right
        radius from an injury sustained four to eight weeks prior. Dr.
        Barbara Schroeder (“Dr. Schroeder”), an ophthalmologist, also
        examined N.B. and noted that N.B.’s eyes showed massive
        preretinal and intraretinal hemorrhages, which she noted was
        “consistent only with non-accidental shaking trauma.” State’s Ex.
        9.


        Detective Cory Boxell (“Detective Boxell”) questioned Preston
        regarding the injuries to N.B. Preston told Detective Boxell that
        he was the sole adult present when N.B. fell off the couch on
        September 7, 2010 and that N.B. had slept most of the day on
        September 8, 2010. Preston also said he was the only adult
        present with N.B. on September 9, 2010 when, according to him,

Court of Appeals of Indiana | Memorandum Decision 35A04-1711-PC-2727 | July 18, 2018   Page 4 of 17
        N.B. again fell off the couch, due to his son pulling the blanket
        N.B. was wrapped up in at the time.


        Preston was charged with Class B felony neglect of a dependent
        resulting in serious bodily injury between August 1, 2010 until
        September 9, 2010 and was charged with Class B felony battery
        resulting in serious bodily injury to a person less than fourteen
        years of age and committed by a person of at least eighteen years
        of age between September 7, 2010 until September 9, 2010.


        On February 27, 2012, the jury trial commenced and continued
        until March 1, 2012. During the trial, three physicians testified
        that N.B.’s condition was the result of abusive head trauma. On
        March 2, 2012, the jury found Preston guilty on both counts. On
        May 7, 2012, Preston was sentenced to consecutive eighteen-year
        sentences, with three years suspended to probation on each
        count. Preston v. State, No. 35A04-1206-CR-291, slip op. at *3-4
        (Ind. Ct. App. Feb. 6, 2013).


Preston appealed, arguing errors in the admission of evidence and claiming that

his convictions violated Indiana double-jeopardy provisions. A panel of this

court unanimously affirmed his convictions and sentences. Preston later filed a

petition for post-conviction relief, which he amended to allege ineffective

assistance of trial counsel. PCR App. at 69-71; PCR Tr. Vol. II at 3.


The post-conviction court conducted an evidentiary hearing on the amended

petition on August 2, 2017. PCR Tr. Vol. II at 3. At the hearing, Preston

introduced the deposition of trial counsel, Matthew Grantham (“Grantham) in

lieu of his live testimony. Id. at 4; PCR Ex. 5 & 5A. Preston also presented

testimony from Dr. John Galaznik (“Dr. Galaznik”), a physician who had been


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employed for thirty-seven years treating “active, vigorous college students” at

the University of Alabama Tuscaloosa. PCR Tr. Vol. II at 15. During that

employment, Dr. Galaznik had never treated a younger child, or an infant, for

suspected abuse, abusive head trauma, or significant eye trauma. Id. at 25-27,

29, 30.


Dr. Galaznik was familiar with terms from ophthalmology and neurology and

explained he approached these disciplines by reading reports and seeing “if just

self-learning can match it, uh, against what I see in the imaging . . . I’m fairly, I

think, familiar with the terms and what’s being discussed on everything in the

reports.” Id. at 18. Dr. Galaznik was aware that the American Academy of

Pediatrics had issued a policy statement that expert witnesses should be board

certified in the relevant specialty of their testimony, as well as actively and

meaningfully engaged in clinical practice in that area, but noted that policy

statement was issued after he had begun his “work.” Id. at 33, 41.


Dr. Galaznik was given one of Preston’s accounts of the injury, that N.B. had

fallen from the couch, and said it was possible that a fall from the couch on

September 7, 2010 could have produced her symptoms, either alone or in

conjunction with the second alleged fall on September 9, 2010. Id. at 70-75. He

also testified that it was also possible that the alleged fall on September 7, 2010,

could have produced the seizures observed for N.B. on September 9, 2010. Id.

at 70-75. Dr. Galaznik also said it was possible that an impact injury could

rapidly increase intracranial pressure, citing “experimental research in an

animal model where they took and impacted the head of a sheep model” before

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testing its intracranial pressure. Id. at 59-60. The research, he said, suggested

that an impact injury can produce a dramatic increase in intracranial pressure

within a short time. Id. at 60. He also thought this pressure could produce

retinal hemorrhaging. Id. at 80-81, 87.


Dr. Galaznik had read a 2010 study conducted on piglets whose heads were

attached to a jackhammer and accelerated and decelerated through a 110-

degree arc in less than 15/1000ths of a second. Id. at 83. The authors of the

study had “rushed over and looked” at the piglets’ eyes and did not see “grossly

visible retinal findings.” Id. at 83. Dissection of the piglets found varying

percentages which had sustained hemorrhaging behind the iris or pooling of

blood in front of the iris, but Dr. Galaznik said these areas were not those

associated with retinal hemorrhaging in human eyes. Id. at 85). Dr. Galaznik

also briefly cited another study done using rotational motion with lambs’ heads.

Id. at 86. The lambs had been anesthetized, and a number of smaller lambs had

died from the experiment within several hours. Id. at 164; PCR Ex. E).


The post-conviction court also heard from Dr. Ralph Hicks (“Dr. Hicks”) who

testified for the State, as he had at Preston’s trial, that the conclusion of abusive

head trauma was supported by a thorough examination of N.B.’s condition and

symptoms. PCR Tr. Vol. II at 160-62, 168, 180. He testified that some medical

professionals believe shaking alone can produce head trauma, while others do

not, and that a simple choice between one cause or the other was difficult to

make. Id. at 159. Dr. Hicks explained that, while the precise mechanism of

shaking is not fully understood, the prevailing theory in the medical community

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is that shaking produces forceful acceleration, deceleration, and rotation that

damages the brain. Id. at 182. He also noted that “the majority of infants and

children who have abusive head trauma will have retinal hemorrhages to one

degree or another” and that the massive or severe retinal hemorrhaging found

by Dr. Schroeder is “very highly associated with inflicted head trauma.” Id. at

160-62, 182. Dr. Hicks was skeptical of studies involving animals because “we

know there are differences between different animal models and a living human

infant, uh, but I don’t think we fully understand what those differences might be

and how they might relate to whether injury occurs or does not.” Id. at 164-65.


Dr. Hicks also disagreed with the assertion that N.B.’s subdural hematoma

could have existed from birth. Id. at 168. Subdural hematomas found at birth

generally occur lower in the brain, near the cerebellum, than the subdural

hematoma found in N.B., which was near the top of her head. Id. at 169. After

the conclusion of the evidence, the post-conviction court issued an order

denying Preston’s petition. The court found that Preston did not receive

ineffective assistance of counsel. Preston now appeals.



                               Discussion and Decision
Post-conviction proceedings do not afford the petitioner an opportunity for a

super appeal, but rather, provide the opportunity to raise issues that were

unknown or unavailable at the time of the original trial or the direct appeal.

Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

(2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

Court of Appeals of Indiana | Memorandum Decision 35A04-1711-PC-2727 | July 18, 2018   Page 8 of 17
cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

appeal and provide only a narrow remedy for subsequent collateral challenges

to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

conviction relief bears the burden of proving the grounds by a preponderance of

the evidence. Ind. Post-Conviction Rule 1(5).


When a petitioner appeals a denial of post-conviction relief, he appeals a

negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

trans. denied. The petitioner must establish that the evidence as a whole

unmistakably and unerringly leads to a conclusion contrary to that of the post-

conviction court. Id. We will disturb a post-conviction court’s decision as

being contrary to law only where the evidence is without conflict and leads to

but one conclusion, and the post-conviction court has reached the opposite

conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

denied. The post-conviction court is the sole judge of the weight of the evidence

and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

App. 2008), trans. denied. We accept the post-conviction court’s findings of fact

unless they are clearly erroneous, and no deference is given to its conclusions of

law. Fisher, 878 N.E.2d at 463.


                      I. Ineffective Assistance of Counsel
Preston argues that the post-conviction court erred in denying his petition for

post-conviction relief because he received ineffective assistance from his trial

attorney. When evaluating a claim of ineffective assistance of counsel, we


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apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668

(1984). Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v.

State, 799 N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied.

First, the defendant must show that counsel’s performance was deficient. Id.

This requires a showing that counsel’s representation fell below an objective

standard of reasonableness and that the errors were so serious that they resulted

in a denial of the right to counsel guaranteed to the defendant by the Sixth and

Fourteenth Amendments to the United States Constitution. Id. Second, the

defendant must show that the deficient performance resulted in prejudice. Id.

To establish prejudice, a defendant must show that there is a reasonable

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

proceeding would have been different. Id. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id.


Further, counsel’s performance is presumed effective, and a defendant must

offer strong and convincing evidence to overcome this presumption. Williams v.

State, 771 N.E.2d 70, 73 (Ind. 2002). 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 that, at the time and under the

circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or

bad tactics do not necessarily render representation ineffective. Shanabarger v.

State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs

of the Strickland test are separate and independent inquiries. Manzano v. State,

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   12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.

   2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the

   ground of lack of sufficient prejudice . . . that course should be followed.’” Id.

   (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537

   U.S. 839 (2002)).


   Preston first contends that his trial counsel deficiently performed by formulating

   a defense without the aid of an expert. Preston asserts that this failure

   precluded a defense that N.B.’s injuries were consistent with the accidental falls

   occurring while she was in his care, as described by Preston. Preston argues

   that the State’s argument, that N.B.’s injuries had to be intentionally inflicted

   because she had been shaken, was left unchecked. We disagree.


   Grantham’s decision to formulate a defense without the aid of an expert did not

constitute deficient performance. Grantham testified in his deposition that his

defense strategy was to try to show N.B. had not been abused and that Preston’s

version of events created reasonable doubt. Moreover, Grantham testified that his

argument was that if N.B. had been abused, it was not by Preston. In preparation

for trial, Grantham testified that he reviewed documents provided by the State in

discovery and consulted with his wife’s brother-in-law, who was in medical school

at the time, and his father-in-law, who was a general practice physician. Grantham

stated that he also reviewed an abusive head trauma article that his wife’s brother-

in-law forwarded to him. Grantham stated that his decision not to consult an

expert was because he believed his best strategy was to focus on the lack of

evidence that his client was the perpetrator, and he believed he could dispute the

   Court of Appeals of Indiana | Memorandum Decision 35A04-1711-PC-2727 | July 18, 2018   Page 11 of 17
medical evidence on cross-examination. The trial record reflects that Grantham

cross-examined every witness and attempted to establish Preston’s defense that no

one saw Preston injure N.B. and that some of the medical issues N.B. displayed,

such as retinal hemorrhaging and a subdural hematoma, could have been caused

by something other than child abuse. Because Grantham adequately prepared for

trial and developed a trial strategy that he believed was best for Preston’s case, his

performance was not deficient.


   Additionally, Preston argues that he was prejudiced by his trial counsel’s failure

   to hire an expert, and there is a reasonable probability that had he done so, the

   outcome of Preston’s trial would have been different. “While it is undisputed

   that effective representation requires adequate pretrial investigation and

   preparation, it is well settled that we should resist judging an attorney’s

   performance with the benefit of hindsight.” McKnight v. State, 1 N.E.3d 193,

   200 (Ind. Ct. App. 2013). Therefore, when deciding a claim of ineffective

   assistance for failure to investigate, we apply a great deal of deference to

   counsel’s judgments. Id. at 201. Establishing failure to investigate as a ground

   for ineffective assistance of counsel requires going beyond the trial record to

   show what investigation, if undertaken, would have produced. Woods v. State,

   701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied, 550 U.S. 930 (1999). This is

   necessary because success on the prejudice prong of an ineffectiveness claim

   requires a showing of a reasonable probability of affecting the result. McKnight,

   1 N.E.3d at 201. Here, Preston’s arguments amount to the contention that, if




   Court of Appeals of Indiana | Memorandum Decision 35A04-1711-PC-2727 | July 18, 2018   Page 12 of 17
Grantham had called an expert, there is a reasonable probability the outcome of

his case would have been different. We disagree.


The trial record reflects testimony from multiple medical professionals who all

agreed that N.B.’s injuries were not consistent with a fall from a couch as

Preston had alleged. Katrina Adelman (“Adelman”), Emergency Medical

Technician Paramedic, testified that she “saw what we call decorticate where

she’s pulling her extremities in and then decerebrate posturing which is pushing

them out which is really indicative of a head injury.” Adelman also stated that

this type of posturing is not seen normally when a child falls from a couch.


Dr. Schroeder testified that N.B. had a lot of retinal hemorrhaging which was

consistent with non-accidental shaking trauma. N.B. also had a subdural

hematoma and subdural hemorrhaging which were consistent with findings

about abusive head trauma. Dr. Schroeder indicated that N.B.’s retinal

hemorrhaging was massive; “N.B. had bilateral, severe, retinal hemorrhages

consistent with non-accidental shaking trauma.” Dr. Schroeder stated “Retinal

hemorrhages like this are not found in any other condition except for shaking

injury. There’s just nothing else that causes retinal hemorrhages like that.” Dr.

Bessette testified that it was unusual for a nine-month-old child to have a

subdural hematoma. Dr. Bessette also stated that he has never seen a child

receive a subdural hematoma from a nineteen-inch fall from a couch. Dr. Patel

testified that N.B.’s seizures, subdural hemorrhaging, retinal hemorrhaging,

vomiting, subdural hematoma, unresponsiveness, and gasping respiration

following the incident, and N.B.’s loss of vision over a period of time were all

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consistent with the abusive head trauma diagnosis. Dr. Patel stated that a short

fall from the couch, as Preston alleged, would not explain N.B.’s injuries.


Dr. Hicks testified that N.B.’s altered level of consciousness, including

unresponsiveness and seizure-like activity, the bruises on her forehead, left arm,

and shoulder area, the collection of hemorrhage or blood underneath the dural

membrane that covers the brain and underneath the skull, the extensive retinal

hemorrhaging were all consistent with the findings of abusive head trauma. Dr.

Hicks also indicated that a fall from a couch nineteen inches high off the ground

was not consistent with an abusive head trauma finding because of the type of

injuries N.B. had and the severity of the injuries were not the sort of things you

would expect to see from a fall of this height even on a hardwood floor. Dr.

Hicks stated, “We just don’t see life threatening injuries in otherwise healthy

children from those types of falls.”


A significant and consistent amount of evidence was presented to display that

N.B.’s combined injuries could not have been caused by anything other than

non-accidental trauma. Because Preston is unable to show a reasonable

probability that, but for Grantham’s decision not to hire an expert, the result of

his criminal proceeding would have been different, Preston was not prejudiced.

We find that Preston has failed to show that “the evidence as a whole leads

unerringly and unmistakably to a conclusion opposite that reached by the post-

conviction court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010).




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                          II. Newly Discovered Evidence
Preston argues that the State’s medical conclusions about abusive head trauma

and the causal relationship to retinal hemorrhaging have been undermined by

recent studies that were published since Preston’s trial. Newly discovered

evidence mandates a new trial only when a defendant demonstrates that: (1)

the evidence has been discovered since 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) it 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 trial. Whedon v. State, 900 N.E.2d 498,

504 (Ind. Ct. App. 2009) (citing Taylor v. State, 840 N.E.2d 324, 329-30 (Ind.

2006)), summarily aff’d, 905 N.E.2d 408 (Ind. 2009). “We ‘analyze[ ] these nine

factors with care, as the basis for newly discovered evidence should be received

with great caution and the alleged new evidence carefully scrutinized.’” Id.

The petitioner for post-conviction relief bears the burden of showing that all

nine requirements are met. Id. (emphasis in original).


Preston contends that the new evidence is material, relevant, and not

cumulative because it negates the State’s theory that N.B.’s injuries could have

only been caused by shaking. He also claims that the newly discovered

evidence is not privileged or incompetent, is worthy of credit, and can be

produced upon a retrial. Preston alleges that the newly discovered evidence is

not merely impeaching because the information from the newest studies

provides an independent basis for a defense that N.B.’s injuries were consistent

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with Preston’s description of the falls. Preston further contends that the

evidence could not have been discovered with due diligence; the evidence is

worthy of credit; the new evidence will probably produce a different result at

trial because it opens up the possibility that N.B.’s injuries were consistent with

an accidental fall as described by Preston.


In order to establish that newly discovered evidence warrants a new trial, a

petitioner for post-conviction relief must show that all nine requirements are

met. Whedon, 900 N.E.2d at 504. Here, the alleged newly discovered evidence

are studies that Preston believes undermines the State’s medical conclusions

that there is a causal relationship between abusive head trauma and retinal

hemorrhaging. Such evidence would have been merely impeaching. In order

to merit a new trial, the evidence at issue cannot be merely impeaching. Id.


However, evidence that destroys or obliterates the testimony upon which a

conviction was obtained is not appropriately considered as merely impeaching

evidence. Bunch v. State, 964 N.E.2d 274, 291 (Ind. Ct. App. 2012) (citing

Wilson v. State, 677 N.E.2d 586, 588 (Ind. Ct. App. 1997)) (quotations omitted),

trans. denied. In Bunch, the newly discovered evidence consisted of testimony

that the defendant did not set multiple incendiary fires in the mobile home and

offered a new, exculpatory explanation for the victim’s death. 964 N.E.2d at

291. In Wilson, one of the State’s witnesses recanted testimony that he and two

children saw the defendant point a firearm at the victim and gave an affidavit,

in which he stated that he and the children were not in a position to see the

incident, and their testimony was fabricated. 677 N.E.2d at 588. In both of

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these cases, the newly discovered evidence was found to warrant a new trial

because it was not merely impeaching, but instead, destroyed or obliterated the

testimony upon which the convictions were obtained.


Such is not the case here. The evidence presented by Dr. Galaznik at the post-

conviction hearing does not destroy or obliterate the testimony upon which

Preston’s convictions were obtained. Dr. Galaznik testified that recent studies

failed to establish a causal relationship between retinal hemorrhaging and

abusive head trauma; however, Dr. Galaznik also conceded that N.B.’s injuries

could have been a non-accidental injury, which is what the jury concluded.

Furthermore, the studies that Dr. Galaznik referred to in his testimony were

studies regarding animals, not humans. The studies also did not consider all of

N.B.’s combined injuries. The evidence that recent studies failed to establish a

causal relationship between abusive head trauma and retinal hemorrhaging was

merely impeaching, and we, therefore, conclude a new trial was not warranted.

The post-conviction court did not err in denying Preston’s petition on this issue.


Affirmed.


Baker, J., and Bradford, J., concur.




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