MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                     Mar 27 2017, 5:50 am
court except for the purpose of establishing
                                                                  CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Eric Koselke                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Baber,                                           March 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1607-CR-1585
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G03-0501-PC-8748



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 1 of 8
[1]   Jeffrey Baber appeals from the denial of his petition for post-conviction relief

      (PCR Petition). He asserts that the post-conviction court erred in rejecting his

      claim of ineffective assistance of trial counsel.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On January 21, 2005, the State charged Baber with two counts of Class A

      felony child molesting (Counts I and II) and two counts of Class C felony child

      molesting (Counts III and IV). Following a jury trial in May 2006, Baber was

      found guilty of Counts II, III, and IV and not guilty of Count I. The trial court

      entered judgments of conviction on Counts II and III and sentenced Baber, on

      July 12, 2006, to an aggregate term of thirty years in prison.


[4]   The facts underlying Baber’s convictions were set out by this court on direct

      appeal as follows:

              Baber taught kindergarten and first grade. K.J. was a student in
              his first grade class. On January 18, 2005, while K.J. was
              coloring a banner in the classroom, Baber put his hand down the
              back of her pants and “put his finger in [her] butt hole.” K.J.
              stated Baber had done the same thing several times during the
              school year; however, because “it hurt the worst that time,” K.J.
              told her mother about the incident after school that day. She
              described how, prior to January 18, while the rest of the children
              were watching a movie, Baber had her grade papers with him in
              the back of the room and put his hand into her pants.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 2 of 8
      Baber v. State, 870 N.E.2d 486, 488 (Ind. Ct. App. 2007) (citations to record

      omitted). Baber’s convictions and sentences were affirmed on direct appeal.


[5]   Baber initiated post-conviction review in 2008 and amended his PCR Petition

      in 2013. In his petition, Baber argued that he was denied the effective

      assistance of counsel at trial. His argument centered on trial counsel’s failure to

      cross examine witnesses about a pending civil suit K.J.’s family had brought

      against Baber and the school corporation. He also alleged that counsel failed to

      object to “false and misleading testimony” and “materially false statements”

      made by the prosecutor. Appellant’s Appendix at 41. Specifically, Baber asserted

      that counsel should have objected when K.J.’s mother testified that there was

      no reason she would want Baber to be in trouble and when the prosecutor

      guaranteed, during rebuttal closing argument, that K.J.’s parents did not want

      the allegations of child molestation to be true. According to Baber, these

      instances were objectionable as false and misleading due to the family’s interest

      in the pending civil action.


[6]   Baber’s trial counsel testified at the evidentiary hearing on April 2, 2015.

      Counsel explained that he was fully aware of the civil action but believed it was

      not in Baber’s best interest to “approach that area” in the criminal case. PCR

      Transcript at 10. He noted that possible other victims had surfaced. Also, he

      did not feel that the existence of the civil action amounted to evidence that

      would impact the jury’s assessment of K.J.’s credibility, given her young age.

      In sum, he testified, “I just didn’t think it was good strategy.” Id. at 14.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 3 of 8
[7]   On June 16, 2016, the post-conviction court issued findings of fact and

      conclusions of law denying post-conviction relief. Baber now appeals.

      Additional facts will be provided below as needed.


                                          Discussion & Decision


[8]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

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

      post-conviction court. Id. Although we do not defer to a post-conviction

      court’s legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


[9]   A petitioner will prevail on a claim of ineffective assistance of trial counsel only

      upon a showing that counsel’s performance fell below an objective standard of

      reasonableness and that the deficient performance prejudiced the petitioner.

      Bethea, 983 N.E.2d at 1138. The petitioner must first demonstrate deficient

      performance, which is “representation that fell below an objective standard of

      reasonableness, committing errors so serious that the defendant did not have


      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 4 of 8
       the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.

       State, 761 N.E.2d 389, 392 (Ind. 2002)). “We afford counsel considerable

       discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor

       strategy, inexperience, and instances of bad judgment do not necessarily render

       representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012)

       (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)). There is a strong

       presumption that trial counsel rendered adequate service. Bethea, 983 N.E.2d at

       1139.


[10]   With regard to the prejudice element, the petitioner must establish “a

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

       would have been different.” Id. “A reasonable probability is one that is

       sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

       694 (1984)). Further, because a petitioner must prove both deficient

       performance and resulting prejudice, the failure to prove either defeats such a

       claim. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001).


[11]   On appeal, Baber argues that trial counsel was ineffective in two respects: (1)

       failing to object to improper vouching statements/testimony and (2) failing to

       cross examine K.J.’s mother regarding the family’s pending civil suit arising

       from the same allegations as the criminal action. We will address each

       argument in turn.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 5 of 8
[12]   First, Baber asserts that counsel should have objected to testimony and

       statements regarding the victim and her family having no reason to lie. In this

       regard, he notes that the prosecutor asked K.J.’s mother at trial, “Is there any

       particular reason why you would want Mr. Baber to be in trouble?” PCR

       Exhibits at 728. She replied in the negative. Baber also directs us to statements

       made by the prosecutor during closing argument guaranteeing that K.J.’s

       parents did not want the allegations to be true and asking, “What motivation

       does this little girl have to lie about this?” Id. at 1051.


[13]   Baber acknowledges that the above statements/testimony did not constitute

       “blatant[] vouching” but argues that they were “a sort of reverse-vouching.”

       Appellant’s Brief at 12. Although Baber’s vouching argument appears dubious,

       we need not reach the issue because he did not argue this ground below.

       Rather, his argument to the post-conviction court – both in his PCR Petition

       and his proposed findings and conclusions – was that counsel should have

       objected on the ground that the statements and testimony were false and

       misleading. His vouching claims are therefore waived. See Allen v. State, 749

       N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-

       conviction relief may not be raised for the first time on post-conviction

       appeal.”).


[14]   Turning to his second claim of ineffectiveness, Baber argues that counsel failed

       to cross examine K.J.’s mother regarding the pending civil suit. He opines that

       this information would have completely counteracted the “‘lack of motive to lie

       testimony’, yet counsel left this arrow in his quiver.” Appellant’s Brief at 14.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 6 of 8
[15]   Baber overstates the significance of this evidence and fails to establish a

       reasonable probability that had counsel cross examined on this basis, the result

       of his criminal trial would have been different. In other words, he has not

       shown prejudice resulting from the alleged deficient performance.


[16]   Prejudice aside, Barber’s trial counsel testified at the post-conviction hearing

       that he made a strategic decision not to elicit information regarding the civil

       suit. He did not believe such evidence would benefit the defense, and he opined

       that it could actually open the door to information prejudicial to Baber.

       Further, the record reveals that counsel vigorously cross examined K.J.’s

       mother, as well as other witnesses, and attempted to impeach her on multiple

       grounds.


[17]   It is well established that “the method of impeaching witnesses is a tactical

       decision and a matter of trial strategy that does not amount to ineffective

       assistance.” Kubsch, 934 N.E.2d at 1151. See also Waldon v. State, 684 N.E.2d

       206, 208 (Ind. Ct. App. 1997) (“the nature and extent of cross-examination is a

       matter of strategy delegated to trial counsel”), trans. denied. The post-conviction

       court determined that counsel’s strategy to avoid any reference to the civil suit

       was reasonable under the circumstances and, therefore, did not constitute

       deficient performance. See Perryman v. State, 13 N.E.3d 923, 931 (Ind. Ct. App.

       2014) (“Reasonable strategy is not subject to judicial second guesses.”) (quoting

       Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986)), trans. denied. Baber has failed to

       establish clear error in this regard.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 7 of 8
[18]   Judgment affirmed.


[19]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017   Page 8 of 8
