MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jul 22 2019, 9:02 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             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
Vickie R. Yaser                                           Jesse R. Drum
Deputy Public Defender                                    Supervising Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daryl Gilbert,                                            July 22, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-2697
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marc T. Rothenberg,
Appellee-Respondent.                                      Judge
                                                          The Honorable Amy J. Barbar,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G02-1506-PC-21035



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019                   Page 1 of 16
                                             Case Summary
[1]   Daryl Gilbert (“Gilbert”) appeals the denial of his petition for post-conviction

      relief following his convictions for Murder1 and Unlawful Possession of a

      Firearm by a Serious Violent Felon2 in connection with the shooting death of

      Aaron Adams (“Adams”). Gilbert presents three issues for our review, which

      we consolidate and restate as whether he was denied the effective assistance of

      trial counsel. We affirm.



                                 Facts and Procedural History
[2]   Gilbert was tried with his co-defendant, Tiandre Harris (“Harris”), who was

      also convicted of Murder. The relevant facts were recited by a panel of this

      Court in Harris’s direct appeal:


                 Sometime in August 2012, Harris, together with [Gilbert] and a
                 third individual, purchased drugs from Darrell Newbern
                 (“Newbern”) and [Adams]. Newbern and Adams lived in
                 separate residences at the corner of Michigan Street and Sherman
                 Avenue in Indianapolis.


                 About one week later, on August 26, 2012, individuals later
                 identified as Harris and Gilbert hired a bootleg taxi that took
                 them to a Valero gas station across the street from Newbern’s
                 and Adams’s residences. Newbern had moved from the home



      1
       Ind. Code § 35-42-1-1(1). Throughout this case, we refer to the versions of the statutes in effect at the time
      of Gilbert’s offenses.
      2
          I.C. § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019                       Page 2 of 16
        two days before, and his housemates, Jonathan Weathers
        (“Weathers”) and Shanna Pigg (“Pigg”) were in the process of
        moving their own belongings from the home when Harris and
        Gilbert arrived. A number of other individuals were gathered on
        the porch of the home, including several children. Adams was
        also seated on the porch.


        Gilbert, standing on the side of the street adjacent to the gas
        station with a pistol in his right hand, started yelling at the group,
        demanding to see Newbern and insisting that Newbern had sold
        him some “bullsh-t dope.” (Tr. at 144.) Weathers told Gilbert
        that Newbern had moved away and no longer lived at the
        residence. He also told Gilbert not to shoot at the porch of the
        home because there were children present.


        Adams, still sitting on the porch, told one of the women to take
        the children inside. He then got up and began to walk toward the
        street with a cell phone in his left hand and his right hand in his
        pocket. Gilbert recognized Adams as having been involved in
        the drug transaction, saying “you look like the n–––a that sold
        me that bad dope,” raised his pistol, and began to fire at Adams.
        (Tr. at 191-92.) At that time, Harris, who was also present,
        began to fire his own gun at Adams. Adams ran to evade Harris
        and Gilbert, but was eventually shot twice: once in the head, and
        once in the buttocks. Adams, who was known to carry a small
        pistol in his front right pocket, was found with a pistol near his
        right hand and a cell phone near his left hand. Adams died as a
        result of the gunshot wound to his head.


        Immediately after this, Harris and Gilbert fled on foot, then
        called for a ride. Police investigating the shooting interviewed
        several witnesses and, as a result of identifications from
        photographic arrays, arrested Harris and Gilbert.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 3 of 16
      Harris v. State, No. 49A04-1401-CR-45, slip. op. at 2-3 (Ind. Ct. App. Aug. 25,

      2014), trans. denied.


[3]   The course of trial proceedings was recited by a panel of this Court on direct

      appeal of Gilbert’s convictions:


              The State charged Gilbert with murder and possession of a
              firearm by a serious violent felon in connection with the shooting
              death of [Adams]. The case was bifurcated. The murder charge
              was tried to a jury, and Gilbert was tried with his co-defendant,
              [Harris]. The jury deadlocked, so Gilbert and the State both
              moved for a mistrial. The trial court granted the motion and
              subsequently scheduled a second jury trial. [. . . .]


              The second trial began on December 9, 2013. Gilbert and Harris
              were once again tried jointly. [. . . .] The jury determined that
              Gilbert was guilty of murder. Next, the possession charge was
              tried to the bench, and the court determined that Gilbert was
              guilty. The court sentenced Gilbert accordingly, and this appeal
              followed.


      Gilbert v. State, No. 49A02-1401-CR-37, slip. op. at 2 (Ind. Ct. App. Aug. 28,

      2014) (record citation omitted). On direct appeal, Gilbert raised only the issue

      of whether his convictions on retrial following a mistrial violated Article 1,

      Section 12 (due course of law clause) and Article 1, Section 14 (double jeopardy

      clause) of the Indiana Constitution. Id. at 3. This Court affirmed. Id. at 4.


[4]   On June 12, 2015, Gilbert, pro se, filed a petition for post-conviction relief,

      which was amended by counsel on July 20, 2017, and again on March 15,

      2018. The post-conviction court held an evidentiary hearing on the amended


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 4 of 16
      petition on May 30, 2018. At the hearing, Gilbert’s two trial attorneys, James

      Snyder (“Snyder”) and Jason Bunch (“Bunch”), and Gilbert testified. On

      November 1, 2018, the post-conviction court entered its written order denying

      Gilbert’s petition. This appeal ensued. Additional facts will be provided as

      necessary.



                                 Discussion and Decision
                                          Standard of Review
[5]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). When appealing

      the denial of post-conviction relief, the petitioner appeals from a negative

      judgment. Wilkes, 984 N.E.2d at 1240. Thus, the appellant must establish that

      the evidence as a whole unmistakably and unerringly points to a conclusion

      contrary to the post-conviction court’s decision. Id. (citing Ben-Yisrayl v. State,

      738 N.E.2d 253, 258 (Ind. 2000)) (quotation marks omitted). We review the

      post-conviction court’s factual findings for clear error and owe no deference to

      its conclusions of law. Id.


                                  Effectiveness of Trial Counsel
[6]   Gilbert contends he was denied the effective assistance of trial counsel in three

      respects: (1) trial counsel failed to tender instructions on lesser-included

      offenses, (2) trial counsel failed to object to the admission of, or move to strike,


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 5 of 16
      certain evidence, and (3) the cumulative effect of trial counsel’s errors

      amounted to ineffective assistance.3


[7]   The Sixth Amendment to the U.S. Constitution guarantees a person accused of

      a crime the right to the assistance of counsel. U.S. Const. amend. VI. “‘[T]he

      right to counsel is the right to the effective assistance of counsel.’” Strickland v.

      Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.

      759, 771 n.14 (1970)).


[8]   Effectiveness of counsel is a mixed question of law and fact. Id. at 698. We

      evaluate Sixth Amendment claims of ineffective assistance under the two-part

      test announced in Strickland. Id. To prevail on an ineffective assistance of

      counsel claim, a defendant must demonstrate both deficient performance and

      resulting prejudice. Dobbins v. State, 721 N.E.2d 867, 873 (Ind. 1999) (citing

      Strickland, 466 U.S. at 687). Deficient performance is that which falls below an

      objective standard of reasonableness. Strickland, 466 U.S. at 687; see also

      Douglas v. State, 663 N.E.2d 1153, 1154 (Ind. 1996). Prejudice exists when a

      claimant demonstrates “there is a reasonable probability that, but for counsel’s

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

      reasonable probability is a probability sufficient to undermine confidence in the

      outcome.” Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687,

      692 (Ind. 1996). The two prongs of the Strickland test are separate and



      3
       Because we conclude that in each instance counsel’s performance was not deficient or, if in error, did not
      prejudice the defendant, we do not address Gilbert’s third argument.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019                    Page 6 of 16
      independent inquiries. Strickland, 466 U.S. at 697. A court deciding an

      ineffective assistance claim need not address both components of the inquiry if

      the defendant makes an insufficient showing on one. Id. 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.


[9]   We “strongly presume” that counsel provided adequate assistance and

      exercised reasonable professional judgment in all significant decisions. McCary

      v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

      considerable discretion in the choice of strategy and tactics. Timberlake v. State,

      753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

      facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

      1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

      reasonable professional judgment even if the strategy in hindsight did not serve

      the defendant’s interests. Id. In sum, trial strategy is not subject to attack

      through an ineffective assistance of counsel claim, unless the strategy is so

      deficient or unreasonable as to fall outside the objective standard of

      reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 7 of 16
                         (1) Instructions on Lesser-Included Offenses
[10]   Gilbert first complains that his trial counsel did not tender instructions for the

       lesser-included offenses of voluntary manslaughter4 and reckless homicide.5


[11]   At the post-conviction hearing, trial counsel testified that, as a matter of trial

       strategy, they did not request instructions on lesser-included offenses, choosing

       instead to pursue an all-or-nothing defense of self-defense.6 Attorney Bunch

       explained that Gilbert “believed he was not guilty by reason of self-defense”

       and “wanted to go for all or nothing.” (PCR Tr. 30.) Lead counsel Snyder

       explained that while the evidence presented at trial would likely have supported

       lesser-included offenses, “our defense was self-defense” and “self-defense

       certainly is - contradicts a little bit a - an offer of voluntary. It gives the jury an

       out. So in general, when it’s a self-defense case, it certainly potentially weakens



       4
         “A person who knowingly or intentionally: (1) kills another human being . . . while acting under sudden
       heat commits voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is
       committed by means of a deadly weapon.” I.C. § 35-42-1-3(a)(1). Voluntary manslaughter is a lesser-
       included offense of murder. Watts v. State, 885 N.E.2d 1228, 1232 (Ind. 2008).
       5
        “A person who recklessly kills another human being commits reckless homicide, a Class C felony.” I.C. §
       35-42-1-5. “A person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and
       unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from
       acceptable standards of conduct.” I.C. § 35-41-2-2(c). Reckless homicide is an inherently lesser-included
       offense of murder. Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995).
       6
           Indiana Code section 35-41-3-2(c) provides, in relevant part:

                  A person is justified in using reasonable force against any other person to protect the person or a
                  third person from what the person reasonably believes to be the imminent use of unlawful force.
                  However, a person:
                           (1) is justified in using deadly force; and
                           (2) does not have a duty to retreat;
                  if the person reasonably believes that that force is necessary to prevent serious bodily injury to the
                  person or a third person or the commission of a forcible felony.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019                          Page 8 of 16
       that trial strategy to offer lessers.” (PCR Tr. 10-11.) Based on this testimony,

       the post-conviction court found that counsel “made a clear and considered

       decision to forgo lesser included instruction[s] for strategic reasons” and

       “arrived at the defense strategy in consultation with and by agreement of the

       defendant, Gilbert.” (PCR App. Vol. II 164.)


[12]   “One legitimate trial strategy for the defendant in a murder trial is an ‘all-or-

       nothing’ one in which the defendant seeks acquittal while realizing that the jury

       might instead convict of murder.” Watts, 885 N.E.2d at 1233. Our supreme

       court has held that “a tactical decision not to tender a lesser included offense

       does not constitute ineffective assistance of counsel, even where the lesser

       included offense is inherently included in the greater offense.” Autrey, 700

       N.E.2d at 1141 (citing Page v. State, 615 N.E.2d 894, 895 (Ind. 1993)).


[13]   In light of Autrey, Gilbert concedes that an all-or-nothing defense can be a

       reasonable trial strategy. However, he attempts to distinguish Autrey by arguing

       that “[w]hat makes this case different is the second chance posture of the trial.”

       (Appellant’s Br. 27.) He contends that because his first trial ended in a mistrial,

       his counsel was aware that his self-defense claim was unpersuasive to the

       majority of the first jury. Further, trial counsel opined that second trials

       generally benefit the State. Therefore, Gilbert concludes that trial counsel

       should not have acquiesced to his preferred strategy and that the decision to

       adopt this approach was particularly detrimental to him.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 9 of 16
[14]   But as our supreme court has noted, an all-or-nothing strategy that results in the

       defendant’s conviction does not necessarily rise to the level of ineffective

       assistance. Autrey, 700 N.E.2d at 1142 (“The fact that the jury found the

       defendant guilty does not make this strategy deficient.”). Counsel was aware

       that the evidence may have supported lesser-included offenses, but consciously

       chose to forgo requesting the instructions after consultation with Gilbert. Just

       as in Autrey, we hold that trial counsel’s calculated strategy “was a tactical

       decision, not an error.” Id. Gilbert has failed to demonstrate that trial

       counsel’s strategy constituted performance “so deficient or unreasonable as to

       fall outside the objective standard of reasonableness.” Id. at 1141.


                                     (2) Admission of Evidence
[15]   Gilbert next contends that trial counsel’s failure to object to the admission of, or

       move to strike, certain evidence amounted to ineffective assistance. “To

       demonstrate ineffective assistance of counsel for failure to object, a defendant

       must prove that an objection would have been sustained if made and that he

       was prejudiced by counsel’s failure to make an objection.” McKnight v. State, 1

       N.E.3d 193, 202 (Ind. Ct. App. 2013).


[16]   The post-conviction court found that trial counsel “generally acknowledged that

       possibly they could have objected or offered further argument, but they also

       testified that as a matter of strategy, they do not object at every opportunity

       because of the negative effect too many objections can have on juries.” (PCR

       App. Vol. II 166-67.) The post-conviction court concluded that “assuming


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 10 of 16
       arguendo that each of these instances presented a valid opportunity to object,

       taken individually or as a whole, the effect of this evidence did not appreciably

       alter [the] probable outcome of the trial.” (PCR App. Vol. II 167.) We address

       each failure to object or move to strike in turn.


[17]   Testimony about Threats. Gilbert first complains that due to counsel’s failure to

       object or move to strike, the jury was permitted to consider otherwise

       inadmissible testimony of threats made against Newburn, who was involved in

       the drug deal between Gilbert, Harris, Adams, and Charles Danzy (“Danzy”)

       approximately one week before the shooting.


[18]   Newburn first testified that after the drug deal, “they called my phone

       threatening me” and “[t]hey was just talking about what they what they was

       gonna - -,” at which point Gilbert’s counsel objected on the basis of hearsay.

       (Trial Tr. 123.) The objection was sustained. Despite the court’s favorable

       ruling, Gilbert argues that counsel’s subsequent failure to move to strike the

       statements was unreasonable. At the post-conviction hearing, Snyder testified

       that “often” counsel would move to strike testimony that had already come in,

       but “there are also other times where we would . . . choose not to draw any

       further attention to it.” (PCR Tr. 14.) The decision not to draw additional

       attention to certain evidence can be a reasonable defense strategy. See Benefield

       v. State, 945 N.E.2d 791, 799-800 (Ind. Ct. App. 2011) (holding that counsel’s

       failure to object to inadmissible hearsay evidence was an objectively reasonable

       trial strategy to not call additional attention to the evidence). Here, we

       conclude that trial counsel’s decision not to call additional attention to the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 11 of 16
       testimony once the objection was sustained did not fall outside the range of

       reasonable professional judgment.


[19]   Newburn also testified about threats communicated to him by police during his

       identification of Harris and Danzy in photo arrays. Newburn testified that

       prior to showing him the photo arrays contained in Trial Exhibits 47 and 79, a

       police officer told Newburn that “the two guys was looking for me to kill me.”

       (Trial Tr. 125.) Gilbert’s counsel did not object.


[20]   Gilbert argues that counsel’s failure to object to the admission of the threat

       prejudiced him by implying he had a violent character and propensity to

       commit murder in contravention of Indiana Rule of Evidence 404(b). Rule

       404(b) provides that “[e]vidence of a crime, wrong, or other act is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.” However, such

       evidence “may be admissible for another purpose, such as proving motive,

       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

       or lack of accident.” Id.


[21]   We first observe that Newburn did not attribute the threat to Gilbert, but rather

       “two guys.” Following the admission of the evidence, the prosecution elicited

       testimony that when the police showed him the photo arrays, Newburn

       identified Harris and Danzy, not Gilbert, as two men present at the drug deal.

       Significantly, defense counsel elicited testimony on cross-examination that

       Newburn was also shown a third photo array in which he identified an


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 12 of 16
       unknown third person, not Gilbert, as being at the deal. It is unclear how

       Gilbert was prejudiced by the admission of a threat made by “two guys” that

       Newburn failed to identify as Gilbert.


[22]   Nevertheless, assuming that the jury would have attributed the threat to Gilbert

       based on Newburn’s in-court identification of Harris and Gilbert, Gilbert has

       failed to show that the objection would have been sustained. We have

       previously held that a defendant’s prior threat to kill a victim can be admitted to

       show the defendant’s hostility to the victim and motive for later shooting him.

       See Jackson v. State, 105 N.E.3d 1142, 1146 (Ind. Ct. App. 2018). And, even if

       sustained, the admission would not have been prejudicial where there was other

       evidence of Gilbert’s intent to kill; namely, that he was shouting for the person

       who had previously sold him bad drugs while holding a loaded firearm.


[23]   Testimony about Victim’s Possible Motivations. Gilbert next complains that trial

       counsel failed to object to and move to strike a witness’s testimony about

       Adams’s motivation for approaching Gilbert. Shawn Taylor (“Taylor”)

       testified Adams “was a little bit street smart . . . and so he was kind of trying to

       keep the guy [Gilbert] on the other side of the street. Because the guy was

       already trying to - -.” (Trial Tr. 163.) Harris’s attorney objected on the basis of

       narrative, and the trial court sustained the objection.


[24]   Gilbert argues that it was unreasonable for Gilbert’s attorneys to not join in the

       objection and then move to strike the evidence. Gilbert contends that the

       evidence was prejudicial because it “depict[ed] the victim as a noble protector


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 13 of 16
       rather than an armed enforcer[.]” (Appellant’s Br. 36.) However, the jury had

       already heard evidence that Adams was involved in the drug deal the week

       before and likely armed with a gun when crossing the street toward Gilbert.

       (Trial Tr. 118, 149-50.) We therefore disagree with Gilbert’s conclusion that

       Taylor’s testimony about Adams’s motivation “seriously undermined the self-

       defense strategy.” (Appellant’s Br. 37.) Further, with the objection already

       sustained, any argument on the part of Gilbert’s attorneys would have drawn

       additional attention to the objectionable testimony, the avoidance of which is a

       reasonable defense strategy. See Benefield, 945 N.E.2d at 799-800.


[25]   Dying Declaration. At trial, the deposition testimony of a deceased witness,

       Kelly McCreary (“McCreary”), was read into evidence over defense counsel’s

       objection. Then, Indianapolis Metropolitan Police Department Detective

       Sergeant John Breedlove (“Detective Breedlove”) testified that he had visited

       McCreary in the hospital prior to her death and McCreary admitted to lying to

       him during the investigation. Over defense counsel’s hearsay objection,

       Detective Breedlove testified:


               A        Ah, she told me that she had three weeks to live. That she
                        wanted to make it right with junior, which I’m assuming
                        that was Jesus and um, she said that she wanted to make it
                        right with me because she lied to me and that I was right
                        that she hide [sic] them in her basement and - - but she
                        wouldn’t let them keep their guns in her house.


               Q        And when, when she’s saying them, who are you speaking
                        to her about?


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 14 of 16
               A        Ah, Mr. Gilbert and Mr. Harris.


       (Trial Tr. 256-57.) Gilbert’s chief complaint on appeal is that in objecting on

       the basis of hearsay, Gilbert failed to further argue with the trial court that the

       statement should not be admissible as a dying declaration under Evidence Rule

       804(b)(2) (hearsay exception based on the unavailability of a declarant).


[26]   Here, the record shows that despite defense counsel’s objection at the first trial,

       the trial court again ruled during a conference held outside the presence of the

       jury that the statement would be admissible as a dying declaration. (Trial Tr.

       213-14.) Then, with the jury present and the witness on the stand, trial counsel

       objected on the basis of hearsay. The objection was overruled, and trial counsel

       presented no further argument. As a panel of this Court has observed,

       “[c]ounsel is not rendered inadequate for failing to make a futile objection.”

       Curtis v. State, 905 N.E.2d 410, 418 (Ind. Ct. App. 2009) (citing Minor v. State,

       641 N.E.2d 85, 91 (Ind. Ct. App. 1994), trans. denied). Having objected and

       been overruled, we hold that trial counsel’s failure to argue further in front of

       the jury to exclude the evidence did not constitute deficient performance and

       was not prejudicial to his case. See id. (holding that defense counsel’s failure to

       reiterate to the trial court an already-rejected argument regarding the exclusion

       of evidence was not prejudicial to the defendant).


[27]   Witness’s Use of the Term “Mug Shot.” Finally, Gilbert complains that trial

       counsel failed to object to a witness’s description of a photo array as “like the

       mug shot of different suspects[.]” (Trial Tr. 166.) Gilbert complains the term


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 15 of 16
       “mug shot” implied to the jury he had a prior criminal history. At the post-

       conviction hearing, Snyder testified that he generally would not have objected

       to a witness’s use of the term “mug shot” because “it’s just a common term for .

       . . the photos that end up in a photo array” and “because it draws attention to

       something that people just kind of commonly know.” (PCR Tr. 18.) “A

       decision to not object to evidence when the objection may be more damaging

       than the evidence is within the wide range of professionally competent

       assistance.” Stevens v. State, 770 N.E.2d 739, 752 (Ind. 2002), cert. denied.

       Further, when looking at the evidence presented as a whole, the reference to

       “mug shot” was inconsequential. Gilbert has failed to show that he suffered

       prejudice from this single fleeting reference.


[28]   In sum, we hold that Gilbert has not established that the evidence as a whole

       unmistakably points to a conclusion contrary to the post-conviction court’s

       decision that, even if trial counsel’s failure to object was in error, the effect of

       this evidence did not appreciably alter the probable outcome of the trial.



                                               Conclusion
[29]   Gilbert has failed to demonstrate that he was denied the effective assistance of

       trial counsel. The post-conviction court properly denied the petition for post-

       conviction relief.


[30]   Affirmed.


       Riley, J., and Pyle, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2697 | July 22, 2019   Page 16 of 16
