      MEMORANDUM DECISION
                                                                            Feb 26 2015, 9:08 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      John Andrew Goodridge                                     Gregory F. Zoeller
      Evansville, Indiana                                       Attorney General of Indiana
                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Larry Lefler,                                            February 26, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               82A05-1408-PC-407
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court.
                                                               The Honorable David D. Kiely,
      State of Indiana,                                        Judge.
      Appellee-Respondent.                                     The Honorable Kelli E. Fink,
                                                               Magistrate.
                                                               Cause No. 82C01-1210-PC-23




      Darden, Senior Judge


                                       Statement of the Case
[1]   Larry Lefler appeals the denial of his petition for post-conviction relief. We

      affirm.


      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015      Page 1 of 12
                                                     Issue
[2]   Lefler raises one issue, which we restate as: whether the post-conviction court

      erred in determining that Lefler failed to prove that he received ineffective

      assistance of trial counsel.


                               Facts and Procedural History
[3]   We incorporate the facts from Lefler’s original appeal, as follows:

              Ker.L. was born on February 19, 1994. Thereafter, Lefler established
              paternity and sporadically exercised visitation rights.
              Kel.L. was born on July 28, 1994. Kel.L.’s mother and Lefler married
              in October of 1998. In 2000, Lefler adopted Kel.L. Lefler and
              Kel.L.’s mother divorced in 2002, after which Kel.L. visited Lefler
              approximately three weekends per month.
              Generally, Ker.L. only visited Lefler during his visits with Kel.L.
              Visitation usually took place at Lefler’s parents’ residence, where
              Lefler lived. During the visits, Ker.L., Kel.L., and Lefler slept in
              Lefler’s bedroom and all three often slept in the same bed or on the
              floor together.
              When Ker.L. was twelve years old, she and Lefler went to sleep on the
              floor of his bedroom. When Ker.L. woke during the night, she felt
              Lefler’s ‘finger . . . in [her] vagina.’ (Tr. 104). Ker.L. pushed Lefler’s
              hand away, got up, and went to the bathroom. She then went to sleep
              in another room. ‘Some time later,’ Ker.L. told Kel.L. about the
              incident but promised Kel.L. she would not report it because Kel.L.
              ‘was scared.’ (Tr. 105).
              When Kel.L. was in the fifth grade, Lefler gave her a blue pill,
              claiming it was a vitamin. After taking the pill, Kel.L. became ‘really
              tired’ and fell asleep. (Tr. 158). Kel.L. later woke up to find Lefler
              ‘pulling down [her] underwear.’ (Tr. 158). Lefler ‘pulled [her] closer
              to him,’ so they were lying face-to-face on their sides. (Tr. 159). Lefler
              then put his ‘private’ on her ‘privates,’ (Tr. 154), and moved ‘forwards
              and backwards.’ (Tr. 161). This occurred ‘[a]t least’ one other time.
              (Tr. 162).
      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 2 of 12
               On October 20, 2009, Ker.L. told her mother, Crystal Elderbrook, that
               Lefler had molested her.
                                                       ****
               On January 5, 2010, the State charged Lefler with Count 1, class A
               felony child molesting; Count 2, class A felony child molesting; and
               Count 3, class C felony child molesting. The trial court commenced a
               three-day jury trial on March 29, 2010.
                                                       ****
               The jury found Lefler guilty on all counts.
      Lefler v. State, Cause No. 82A04-1007-CR-479, at 1-2 (Ind. Ct. App. July 13,

      2011).


[4]   Lefler appealed his convictions, claiming that the trial court erred in excluding

      evidence that it had deemed to be inadmissible hearsay. The Court affirmed the

      trial court’s judgment, concluding that Lefler had waived his claim and, in any

      event, the trial court did not err in excluding Lefler’s tendered evidence. See id.

      at *2-3.


[5]   Next, Lefler filed a petition for post-conviction relief, alleging ineffective

      assistance of trial counsel. The post-conviction court held an evidentiary

      hearing on Lefler’s claim. Trial counsel did not testify at the hearing. The

      court determined that Lefler’s claims were without merit and denied his

      petition. This appeal followed.1




      1
        We note that Appellant has included the post-conviction transcript in his Appendix. The transcript is
      transmitted to the Court pursuant to Indiana Appellate Rule 12(B), so parties should not reproduce any
      portion of the transcript in the Appendix. See Ind. Appellate Rule 50(F).

      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015          Page 3 of 12
                                   Discussion and Decision
[6]   Lefler argues that the post-conviction court erred in rejecting his claim of

      ineffective assistance of trial counsel. A post-conviction proceeding is not a

      substitute for a direct appeal and does not provide a petitioner with a “super-

      appeal.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). The post-conviction

      rules contemplate a narrow remedy for subsequent collateral challenges to

      convictions. Id.


[7]   Post-conviction proceedings are, by nature, civil proceedings in which the

      petitioner must establish grounds for relief by a preponderance of the evidence.

      Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). When appealing the denial

      of post-conviction relief, the petitioner stands in the position of one appealing

      from a negative judgment. Id. On appeal, the petitioner must show that the

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

      to that reached by the post-conviction court. Kubsch v. State, 934 N.E.2d 1138,

      1144 (Ind. 2010).


[8]   Claims of ineffective assistance of counsel are evaluated using the Strickland

      standard articulated by the United States Supreme Court. Wilkes, 984 N.E.2d

      at 1240. The standard has two elements. First, a petitioner must demonstrate

      that counsel performed deficiently based upon prevailing professional norms.

      Id. Counsel is afforded considerable discretion in choosing strategy and tactics,

      and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d

      591, 603 (Ind. 2001). In fact, counsel’s performance is presumed effective, and


      Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 4 of 12
       a petitioner must offer strong and convincing evidence to overcome this

       presumption. Kubsch, 934 N.E.2d at 1147.


[9]    Second, a petitioner must establish that counsel’s deficient performance resulted

       in prejudice to the petitioner. Wilkes, 984 N.E.2d at 1240. That is, the

       petitioner must show a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. Id. at 1241. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Id. An inability to establish either deficient performance or prejudice is fatal to

       a claim of ineffective assistance. Rowe v. State, 912 N.E.2d 441, 443 (Ind. Ct.

       App. 2009), aff’d on reh’g, 915 N.E.2d 561 (2009), trans. denied.


[10]   We note that the judge who presided over Lefler’s original trial is also the judge

       who presided over Lefler’s post-conviction hearing. In such a case, the post-

       conviction court’s findings and judgment are entitled to greater than usual

       deference because the judge is uniquely situated to assess whether trial counsel’s

       performance was deficient and whether, but for counsel’s unprofessional

       conduct, there was a reasonable probability that a different verdict would have

       been reached. McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013).


[11]   We further note that Lefler did not present testimony from his trial counsel at

       the post-conviction hearing. Although he told the post-conviction court that he

       had subpoenaed trial counsel, counsel did not appear. Lefler did not ask the

       court for a continuance or a body attachment, and he presented no evidence

       from trial counsel by way of affidavit. When trial counsel does not testify in


       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 5 of 12
       support of a petitioner’s arguments, the post-conviction court may infer that

       counsel would not have supported petitioner’s allegations. Oberst v. State, 935

       N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied.


[12]   Lefler first argues that his trial counsel failed to conduct a full and adequate

       factual investigation. Establishing failure to investigate as a ground for

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

       what information an investigation, if undertaken, would have produced.

       McKnight, 1 N.E.3d at 201. Further, the petitioner must show how the

       additional information would have aided in the preparation of the case. Turner

       v. State, 974 N.E.2d 575, 585 (Ind. Ct. App. 2012), trans. denied.


[13]   Lefler asserts that his counsel did not interview Donovan Madison, who is the

       son of Lefler’s then-fiancée, Debbie Lefler, until a few days before trial. He fails

       to explain how the delay in the interview prejudiced him, so this claim must

       fail.


[14]   Lefler further asserts that his counsel erred by failing to interview anyone listed

       on Lefler’s witness list except for Lefler, Debbie, and Madison. However,

       Lefler’s witness list stated only that the other witnesses would testify

       “concerning the behavior of the children since the day of the alleged incident.”

       Appellant’s App. p. 416. Furthermore, during the post-conviction hearing,

       Debbie testified that Mary Lefler, Richard Lefler, Bill Martin, Michael

       Whoeler, Donald Standing, Mindy Marx, Jeremy Morris, and Amanda Morris,

       who were on the witness list, would have testified at trial only that “the children


       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 6 of 12
       weren’t acting unusual during” the times when the molestations occurred. Tr.

       p. 85. On cross-examination, Debbie conceded that none of those witnesses

       were eyewitnesses to the acts of molestation. At the original trial, counsel had

       cross-examined Ker.L. and Kel.L. about their attitudes toward Lefler and their

       behavior before and after being molested. We cannot conclude that counsel

       made an unreasonable strategic choice by declining to interview witnesses who

       had, at best, general knowledge about Ker.L. and Kel.L.’s behavior at the time

       the crimes were committed, particularly when counsel was able to cross-

       examine Ker.L. and Kel.L. on that subject. This evidence is insufficient to

       rebut the presumption of effective assistance. See Villalon v. State, 956 N.E.2d

       697, 706 (Ind. Ct. App. 2011) (appellant did not demonstrate that counsel

       performed deficiently by failing to present alibi defense), trans. denied.


[15]   Lefler next argues that his trial counsel failed to call witnesses at trial who

       would have undermined Ker.L. and Kel.L.’s credibility. A decision regarding

       what witnesses to call is a matter of trial strategy which an appellate court will

       not second-guess. Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005),

       trans. denied.


[16]   Lefler claims his counsel should have called Donovan Madison to testify about

       text messages he sent to, and received from, Kel.L. after Kel.L.’ s accusations

       became public, because the messages would have shown Kel.L. was biased

       against Debbie and wanted to sabotage her relationship with Lefler.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 7 of 12
[17]   The text messages do not undermine Kel.L.’s credibility. Although she told

       Madison she hated Debbie, she also stated several times that she loved Debbie

       and did not want to see her hurt. Furthermore, admission of the text messages

       into evidence could have damaged Lefler. At one point, Madison texted Kel.L

       that he hoped Lefler “takes the Plead [sic] deal. . . .it’ll only be 5 years.” Ex.

       Vol., Ex. 2. If the jurors had seen that statement, they would have been made

       aware of plea bargaining and might have speculated that Lefler was prepared to

       admit guilt. Under these circumstances, failing to call Madison to testify was

       not an unreasonable decision.


[18]   Lefler also claims that trial counsel should have called Crystal Elderbrook to

       testify that she urged Debbie to end her relationship with him. Elderbrook,

       who is Ker.L.’s mother, was hostile to Lefler’s defense. During her cross-

       examination at Lefler’s original trial, she disagreed with the majority of Lefler’s

       counsel’s questions and rejected his characterizations of events. In addition,

       Elderbrook did not testify at the post-conviction hearing. It is unclear that

       Elderbrook would have agreed that she had a conversation with Debbie about

       her relationship with Lefler or that, if she agreed that such a conversation had

       occurred, it would have affected the outcome of the trial.


[19]   Lefler next argues that his trial counsel should have called Justin Lefler to

       testify because Justin would have told the jury: (1) he would have known if

       Lefler had molested Ker.L. and Kel.L. because he has a sleep disturbance and

       stays awake at night; and (2) he once saw Lefler sleeping in a bed with Kel.L.,

       and when Lefler accidentally hit her in his sleep, she got out of bed and kicked

       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 8 of 12
       Lefler. Justin did not testify at the post-conviction hearing, and there is no

       information in the record on how often Justin slept at Lefler’s residence, where

       he slept, and whether he would have noticed the acts of molestation as

       described by Ker.L. and Kel.L. Further, Justin’s generalized description under

       the circumstances of one alleged act of kicking by Kel.L. of Lefler appears to

       have minimal relevance to the crimes at issue here. Lefler has failed to carry his

       burden of proving that choosing not to call Justin was objectively unreasonable.


[20]   Next, Lefler claims that his trial counsel failed to adequately impeach Ker.L.

       and Kel.L. on a number of topics that he claims would have undermined their

       credibility in the eyes of the jury. Specifically, he says counsel should have

       impeached Ker.L. by asking her whether she was mad at Lefler prior to

       reporting the molestation because he would not buy her a car or tanning salon

       sessions, and counsel should have impeached both Ker.L. and Kel.L. by asking

       whether they were angry that Lefler intended to marry Debbie. Appellant’s Br.

       p. 20. However, at trial, Lefler’s counsel cross-examined Ker.L. and Kel.L. on

       those issues. Appellant’s App. pp. 477, 483-84, 535, 543, 545. He has failed to

       establish deficient performance on this point.


[21]   Next, Lefler argues that his trial counsel should have cross-examined Kel.L.

       about: (1) the questions she asked Debbie when Debbie disclosed to Kel.L. that

       she had been molested as a child; and (2) about Kel.L.’s tendencies to sabotage

       Lefler’s romantic relationships. In fact, Lefler’s counsel asked Kel.L. about

       those subjects on cross-examination. Appellant’s App. pp. 537, 543, 545.

       Thus, counsel brought those issues to the jury’s attention. Further questioning

       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 9 of 12
       of Kel.L. on these issues could have been seen by the jury as unfair badgering.

       We cannot say counsel performed unreasonably. See Thomas v. State, 965

       N.E.2d 70, 76 (Ind. Ct. App. 2012) (counsel effectively impeached the State’s

       witness by causing the witness to admit to inconsistent statements), trans. denied.


[22]   Lefler also claims his trial counsel should have impeached Kel.L. about an

       incident where a friend of hers walked in and her dad “had yelled at the friend.”

       Appellant’s Br. p. 20. It is unclear, and Lefler fails to clarify, how this incident

       was relevant and would have impeached Kel.L. Furthermore, testimony about

       the incident could have worked against Lefler, as it could have caused the jury

       to view him in a negative light. Counsel was not ineffective for refraining from

       questioning Kel.L. on this subject.


[23]   Lefler also asserts that his trial counsel erred because, when the trial court

       sustained the State’s hearsay objections to testimony by Lefler and Debbie,

       counsel did not submit offers of proof. Lefler asserts that counsel’s error was

       crucial and unreasonable because, on direct appeal, the Court determined that

       his challenges to the exclusion of the hearsay evidence were waived. He further

       argues that counsel should have called Ker.L., Kel.L., and Elderbrook to the

       stand to ask them the questions that the trial court forbade Lefler and Debbie to

       answer about those persons’ statements.


[24]   Debbie attempted to testify about: (1) questions that Kel.L. had asked her when

       Debbie disclosed that she had been molested as a child; and (2) statements by

       Kel.L. to the effect that she did not approve of Debbie and Lefler’s relationship.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 10 of 12
       Counsel’s failure to submit offers of proof regarding these statements did not

       amount to ineffective assistance for two reasons. First, after the objections were

       sustained, counsel rephrased his questions to present the information to the jury

       through Debbie without running afoul of the hearsay rule. Appellant’s App.

       pp. 559-60, 571. Second, as noted above, trial counsel did cross-examine Kel.L.

       on those subjects. Thus, the evidence was presented to the jury, and Lefler

       cannot have been prejudiced by counsel’s failure to present offers of proof.


[25]   Regarding Lefler’s testimony, he attempted to testify to statements made by

       Elderbrook and Ker.L. regarding visitation problems and to statements made by

       Ker.L. when Lefler refused to buy her a car and sessions at a tanning salon.

       However, Lefler’s counsel cross-examined Ker.L. about the car and tanning

       sessions, and he cross-examined Kel.L. about visitation issues between Ker.L.

       and Lefler. Appellant’s App. pp. 484, 539-40. We cannot conclude that

       counsel prejudiced Lefler by failing to tender offers of proof when counsel

       presented the same evidence to the jury through other witnesses.


[26]   Lefler has failed to carry his burden of proving that the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite to that reached by

       the post-conviction court.


                                                Conclusion
[27]   For the reasons stated above, we affirm the judgment of the post-conviction

       court.


[28]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 11 of 12
[29]   Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1408-PC-407 | February 26, 2015   Page 12 of 12
