MEMORANDUM DECISION
                                                                 Dec 10 2015, 8:33 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.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Kathleen Cleary                                          Attorney General of Indiana
John Pinnow
                                                         James B. Martin
Indianapolis, Indiana
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Judy Kirby,                                              December 10, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         55A01-1503-PC-85
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Jane Spencer
                                                         Craney, Judge
Appellee-Respondent.
                                                         Cause No. 55D03-1210-PC-1505




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 1 of 19
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Judy Kirby (Kirby), appeals the post-conviction court’s

      denial of her petition for post-conviction relief.


[2]   We affirm.


                                                   ISSUES

[3]   Kirby raises two issues on appeal, which we restate as:


          (1) Whether she received ineffective assistance of trial counsel; and

          (2) Whether she received ineffective assistance of appellate counsel.


                           FACTS AND PROCEDURAL HISTORY

[4]   The facts, as set forth in Kirby’s direct appeal, Kirby v. State, 774 N.E.2d 523,

      529-30 (Ind. Ct. App. 2002), reh’g denied, trans, denied, are presented as follows:

              For some time prior to March 25, 2000, Kirby was under stress
              because of her relationship with Tinnie [Kirby] [Kirby’s boyfriend] and
              her concern about losing him and her children. Kirby was also
              concerned about getting into trouble with the police because of her
              involvement with drugs. As a result of this stress, Kirby exhibited
              many bizarre behaviors, such as wearing disguises, placing cameras in
              trees, reporting that people were watching and following her, and
              expressing thoughts of suicide. On March 2, 2000, Kirby was
              involuntarily committed to the psychiatric unit at St. Francis Hospital.
              There, Kirby was diagnosed with Psychosis and given Risperdol, an
              anti-psychotic drug. Kirby was also diagnosed with hyperthyroidism.
              On March 4, 2000, Kirby’s mental condition had improved to the
              point where she was no longer seen as an immediate danger to herself
              or others and, thus, she was released from St. Francis Hospital.



      Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 2 of 19
        On March 25, 2000, Kirby, three of her eight children, and her
        nephew, J.Y., (collectively, the Children) left the Greenwood residence
        of Jeanetta Scott, Kirby’s sister, and drove to a car wash and then to a
        McDonald’s for soft drinks. Scott was worried about Kirby’s
        condition and followed Kirby in her own car. When Kirby left
        McDonald’s, she passed Scott’s car and then came to a complete stop
        in the roadway. Scott went around Kirby’s stopped car and turned
        around at the first side street available. However, Scott lost sight of
        Kirby because Kirby drove away after Scott had passed her.
        Subsequently, Kirby stopped her car at a stop sign near Sarah Mullis’s
        driveway and remained there for approximately two minutes as other
        motorists drove around her. Mullis approached Kirby’s car and asked
        if Kirby needed to use her telephone. After Kirby indicated that she
        did need to use the telephone, Mullis went into her house, got a
        cordless telephone, and gave it to Kirby. Kirby drove away with the
        phone, and Mullis called 9-1-1. However, when Mullis looked out a
        window, she saw Kirby’s car sitting in front of her garage. Mullis went
        outside and retrieved the telephone. Kirby sat in her car in Mullis’s
        driveway staring straight ahead for approximately five minutes and
        then drove off.
        Kirby then showed up uninvited at a baby shower at State Road 67
        and High School Road. Kirby exclaimed to everyone at the shower
        that she was looking for a birthday party because it was her son’s
        birthday. Kirby and the Children stayed at the baby shower for
        approximately fifteen to twenty minutes and then left in Kirby’s car.
        At approximately 4:11 p.m., Kirby arrived at a gas station on State
        Road 67 in Martinsville, Indiana, where she purchased gas and candy.
        Shortly before 5:00 p.m., Kirby left the gas station and drove her car
        the wrong way, entering an exit ramp from State Road 67. Kirby
        accelerated as she drove the wrong way on the exit ramp. Kirby
        traveled northbound in the southbound lanes of State Road 67. Nine
        motorists had to take evasive action, such as driving away from the
        lane in which Kirby was speeding the wrong way, to avoid colliding
        with Kirby’s car. One motorist had continually blown her horn to
        alert Kirby to the danger. Several motorists testified that Kirby had
        made no effort to evade oncoming traffic. In addition, Kirby passed
        six “wrong way” traffic signs and ten “do not enter” signs, which were
        posted along the roadway and visible to motorists. There was also an
        emergency lane available to Kirby for getting out of the way of

Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 3 of 19
              oncoming traffic. Eventually, Kirby’s car clipped the back of another
              car and then collided with a van, causing the van to vault into the air
              and then land on its side. Kirby’s car was traveling over ninety miles
              per hour when it struck the van. A later investigation of Kirby’s car
              indicated that her brake lights were not “on” at the time of impact.
              The van’s passengers included Tom Reel, his son, Bradley Reel, and
              his daughter, Jessica Reel (collectively, the Reels), and Bradley’s
              friend, Richard Miller. The Children and the Reels all died at the
              scene of the collision. Miller was injured and suffered permanent
              impairment of his back and right foot. Kirby was thrown from her car
              and suffered a closed head injury and various orthopedic injuries.
              On April 14, 2000, the State charged Kirby with seven counts of
              murder as felonies, four counts of neglect of a dependent resulting in
              serious bodily injury as class B felonies, and one count of aggravated
              battery as a class B felony. . . .
              The trial court conducted a jury trial, and the jury found Kirby guilty
              as charged. At sentencing, the trial court merged the four convictions
              of neglect of a dependent resulting in serious bodily injury as class B
              felonies into the murder convictions of the Children. The trial court
              then sentenced Kirby to sixty-five years each for the three murders of
              the Reels, fifty-five years each for the four murders of the Children,
              and twenty years for the aggravated battery of Miller. Further, the trial
              court ordered that the sentences for the murders of the Reels be served
              consecutively to each other and to the sentence for the aggravated
              battery of Miller. The trial court ordered that the sentences for the
              murders of the Children be served concurrently to each other and to all
              other sentences. Thus, the trial court sentenced Kirby to an aggregate
              two hundred and fifteen year term of incarceration.
[5]   Kirby appealed. On appeal, she presented this court with six issues of reversible

      error. She disputed the trial court’s denial of her motion to dismiss pursuant to

      Ind. Criminal Rule 4(B); the admission of prior bad act evidence pursuant to

      Ind. Evidence Rule 404(b); the denial of two motions for mistrial predicated

      upon prosecutorial misconduct; the failure to give a circumstantial evidence

      instruction; the presence of two officers in the courtroom despite a separation of


      Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 4 of 19
      witnesses order; and the appropriateness of her sentence. We affirmed the trial

      court. See Kirby, 774 N.E.2d at 540. On January 2, 2003, our supreme court

      denied transfer.


[6]   On October 19, 2012, Kirby filed a pro se petition for post-conviction relief and,

      subsequently, an amended petition, through counsel, on December 12, 2013.

      On October 30, 2014, the post-conviction court conducted an evidentiary

      hearing. Thereafter, on February 18, 2015, the post-conviction court issued its

      findings of fact, conclusions, and order, denying Kirby’s petition for post-

      conviction relief.


[7]   Kirby now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                            I. Standard of Review


[8]   Under the rules of post-conviction relief, the petitioner must establish the

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

      Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To

      succeed on appeal from the denial of relief, the post-conviction petitioner must

      show that the evidence is without conflict and leads unerringly and

      unmistakably to a conclusion opposite that reached by the post-conviction

      court. Id. at 975. The purpose of post-conviction relief is not to provide a

      substitute for direct appeal, but to provide a means for raising issues not known

      or available to the defendant at the time of the original appeal. Id. If an issue

      was available on direct appeal but not litigated, it is waived. Id.
      Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 5 of 19
                                    II. Ineffective Assistance of Counsel

[9]    Kirby contends that she was denied the effective assistance of both trial and

       appellate counsel. The standard by which we review claims of ineffective

       assistance of counsel is well established. In order to prevail on a claim of this

       nature, Kirby must satisfy a two-pronged test, showing that: (1) her counsel’s

       performance fell below an objective standard of reasonableness based on

       prevailing professional norms; and (2) there is a reasonable probability that, but

       for counsel’s errors, the result of the proceeding would have been different.

       Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005) (citing Strickland v.

       Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

       reh’g denied), trans. denied. The two prongs of the Strickland test are separate and

       independent inquiries. Johnson, 832 N.E.2d at 996. 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.” Timberlake v. State, 753 N.E.2d 591, 603

       (Ind. 2001) (quoting Strickland, 466 U.S. at 697), reh’g denied, cert. denied, 537

       U.S. 839 (2002).


[10]   Counsel is afforded considerable discretion in choosing strategy and tactics and

       we will accord those decisions deference. Timberlake, 753 N.E.2d at 603. A

       strong presumption arises that counsel rendered adequate assistance and made

       all significant decisions in the exercise of reasonable professional judgment. Id.

       The Strickland Court recognized that even the finest, most experienced criminal

       defense attorneys may not agree on the ideal strategy or the most effective way

       to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 6 of 19
       instances of bad judgment do not necessarily render representation ineffective.

       Id. Furthermore, we will not speculate as to what may or may not have been

       advantageous trial strategy as counsel should be given deference in choosing a

       trial strategy which, at the time and under the circumstances, seems best.

       Johnson, 832 N.E.2d at 997.


                                                   A. Trial Counsel


[11]   Kirby contends that her trial counsel rendered ineffective assistance because she

       “failed to object at trial to testimony regarding Kirby’s dealing in prescription

       drugs within one year prior to the crash.” (Appellant’s Br. p. 28).


[12]   On April 20, 2000, during the trial court proceedings, trial counsel filed a

       request for 404(b) notice, requesting the State to provide reasonable notice of

       any evidence of other crimes, wrongs, or acts it intended to present at trial.

       Following three separate hearings, the trial court issued a preliminary order,

       determining, in pertinent part, that “the prejudicial effect of the alleged

       interstate drug trafficking evidence substantially outweigh[ed] its probative

       value” and therefore would be inadmissible “unless and until the Defense opens

       the door.” (D.A. App. p. 518). 1 On March 15, 2001, the State filed its Motion

       to Reconsider Court’s Order Re: Admissibility of 404(b) Evidence, asserting

       the discovery of “additional evidence that the [c]ourt had not considered at the




       1
        The records in the direct appeal will be referenced as “D.A. ___”, whereas the records of the post-
       conviction proceeding will be referenced as “PCR ____”.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015            Page 7 of 19
       time of its ruling[,]” to which Kirby formally objected five days later. (D.A.

       App. p. 642). After scheduling the issue for further evidence, the trial court

       held an evidentiary hearing on April 11 and 12, 2001. Thereafter, on April 22,

       2001, the trial court ruled that evidence of Kirby’s drug dealings within one

       year of March 25, 2000 would be admissible “only as to [Kirby’s] motive,

       intent, plan, knowledge, absence of mistake or accident as to [Kirby’s] acts on

       March 25, 2000 and for no other reason.” (D.A. App. p. 898). The trial court

       recognized that “while the evidence is prejudicial” to Kirby, “the probative

       value of the evidence substantially outweigh[ed] its prejudicial effect because of

       the unique nature of the defense asserted by [Kirby] both now and under the

       previous insanity defense.” (D.A. App. p. 898). During the trial, the State

       offered the prior bad act evidence for admission; Kirby’s counsel failed to

       contemporaneously object.


[13]   A contemporaneous objection at the time the evidence is introduced at trial is

       required to preserve the issue for appeal. Brown v. State, 929 N.E.2d 204, 207

       (Ind. 2010), reh’g denied. The purpose of this rule is to allow the trial judge to

       consider the issue in light of any fresh developments and also to correct any

       errors. Id. The failure to make a contemporaneous objection to the admission

       of evidence at trial results in waiver of the error on appeal. Jackson v. State, 735

       N.E.2d 1146, 1152 (Ind. 2000). At the hearing on post-conviction relief,

       Kirby’s trial counsel admitted that she “didn’t object” when the State sought to

       introduce the evidence of Kirby’s drug dealing. (PCR Tr. p. 38).




       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 8 of 19
[14]   However, in order 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).


[15]   Here, Kirby fails at the first prong. After concluding on direct appeal that Kirby

       had waived her argument on the prior bad act evidence for our review, the

       appellate court determined that, waiver notwithstanding, “we would not reverse

       Kirby’s convictions based upon the trial court’s admission of evidence

       pertaining to Kirby’s prior drug dealings.” Kirby, 774 N.E.2d at 533. Notably,

               evidence of Kirby’s prior drug dealing was highly relevant to the issue
               of Kirby’s state of mind at the time of the fatal collision. Indeed, such
               evidence was offered to prove an element of the State’s theory that
               Kirby was motivated to commit suicide because she had engaged in
               drug dealing and was afraid that she was under investigation, would be
               arrested, and would lose her children as a consequence. Accordingly,
               the trial court did not abuse its discretion by permitting the State to
               introduce evidence of Kirby’s drug dealing activities in the year
               preceding the collision.
       Id. Thus, even if Kirby’s trial counsel would have contemporaneously objected

       to the introduction of the prior bad act evidence, the trial court would have

       overruled her objection based on relevancy considerations. Therefore, as a

       proper objection would not have been sustained, we conclude that Kirby’s trial

       counsel was not ineffective for failing to object.

                                             B. Appellate Counsel

[16]   Next, Kirby contends that her appellate counsel rendered ineffective assistance

       by failing to raise the issue of a presumed defective jury instruction. The
       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 9 of 19
       standard by which we review claims of ineffective assistance of appellate

       counsel is the same standard applicable to claims of trial counsel

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

       reh’g denied, trans. denied. Our supreme court identified three categories of

       appellate counsel ineffectiveness claims, including: (1) denial of access to an

       appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler v.

       State, 690 N.E.2d 188, 193-95 (Ind. 1997), reh’g denied, cert. denied, 525 U.S.

       1021 (1998).


[17]   Where, as here, a defendant raises a waiver of issue claim, we employ a two-

       part test: (1) whether the unraised issues are significant and obvious from the

       face of the record; and (2) whether the unraised issues are clearly stronger than

       the raised issues. Id. at 194. Otherwise stated, to prevail on a claim of

       ineffective assistance of appellate counsel, a defendant must show from the

       information available in the trial record or otherwise known to appellate

       counsel that appellate counsel failed to present a significant and obvious issue

       and that this failure cannot be explained by any reasonable strategy. Ben-Yisrayl

       v. State, 738 N.E.2d 253, 260-61 (Ind. 2000), reh’g denied, cert. denied, 534 U.S.

       1164 (2002). However, we “should be particularly sensitive to the need for

       separating the wheat from the chaff in appellate advocacy, and should not find

       deficient performance when counsel’s choice of some issues over others was

       reasonable in light of the facts of the case and the precedent available to counsel

       when that choice was made. Fisher v. State, 810 N.E.2d 674, 677 (Ind. 2004)

       (citing Timberlake, 753 N.E.2d at 605).

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 10 of 19
[18]   In her post-conviction relief proceedings, Kirby challenges the effectiveness of

       her appellate counsel by failing to appeal a presumed defective tendered jury

       instruction. The final jury instruction reads as “[a] person is presumed to have

       caused the reasonable results of her own acts.” 2 (D.A. App. p. 2848). Kirby

       argues that the jury instruction impermissibly created a mandatory presumption

       in favor of the State, effectively shifting the burden of proof.


[19]   On direct appeal, Kirby’s appellate counsel presented six issues of reversible

       error. She disputed the trial court’s denial of her motion to dismiss pursuant to

       Ind. Criminal Rule 4(B); the admission of prior bad act evidence pursuant to

       Ind. Evidence Rule 404(b); the denial of two motions for mistrial predicated

       upon prosecutorial misconduct; the failure to give a circumstantial evidence

       instruction; the presence of two officers in the courtroom despite a separation of

       witnesses order; and the appropriateness of her sentence. After review, we

       affirmed the trial court, and our supreme court denied transfer. See Kirby, 774

       N.E.2d at 540. The issues raised in direct appeal were either waived or posed




       2
         The State’s original proposed instruction stated that “a person is presumed to have intended the reasonable
       results of her own act.” (D.A. Tr. p. 2727). Defense counsel objected because “it’s an incorrect statement of
       the law” that would mislead and confuse the jury and “ignores the elements of knowing and voluntary.”
       (D.A. Tr. p. 2727). After doing some research, the trial court amended the “intended” language to “caused”
       and tendered the instruction without objection. In Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012), defense
       counsel objected to a State’s proposed instruction on the ground that it was an incorrect statement of the law.
       After the trial court sent an intern to research the tendered instruction, the trial court modified it before
       instructing the jury. Id. As in Kane, where our supreme court noted that “this is enough to show that the trial
       judge considered whether the proposed instruction was an incorrect statement of the law and thus to preserve
       for appeal an objection to the instruction on that ground,” we find that Kirby’s trial counsel’s objection in the
       instant case was sufficient to preserve the issue for review. Id at 1232.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015             Page 11 of 19
       fairly straightforward, common legal questions. By contrast, the unraised issue

       stands on a “different footing.” See Fisher, 810 N.E.2d at 677.


[20]   There is no question that at the time of Kirby’s jury trial in 2001, the law on

       mandatory and permissive jury instructions was still being formulated and

       adjusted. In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39

       (1979), the Supreme Court held that the jury could have interpreted an

       instruction stating “[t]he law presumes that a person intends the ordinary

       consequences of his voluntary acts” as a mandatory presumption. Id. at 513.

       Thus, the Court held that the instruction improperly shifted the burden of proof

       on the issue of intent, violating the Due Process Clause by not requiring the

       State to prove every element of the crime charged. Id. at 520-21. The Court

       reasoned that the instruction denied the defendant due process in cases where

       intent is at issue because it failed to explain that this presumption could be

       rebutted by the defendant coming forth with evidence to the contrary. Id. at

       517-18.


[21]   Shortly thereafter, the Indiana supreme court considered the same issue in Jacks

       v. State, 394 N.E.2d 166 (1979). Distinguishing the Sandstrom instruction, the

       jury instruction in Jacks read, “everyone is presumed to intend the natural and

       probable consequences of his voluntary acts, unless the circumstances are such

       to indicate the absence of such intent.” Id. at 174. The Jacks court held that this

       instruction did not have either the conclusive or burden-shifting effect as the

       instruction in Sandstrom because the presumption was qualified by relaying that



       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 12 of 19
       jurors could look to the surrounding circumstances in the present case. Id. at

       175.


[22]   This issue has since been the subject of much debate. The United States

       Supreme Court, relying on Sandstrom, later explained that the analysis hinged

       on the difference between a mandatory presumption and a permissive inference.

       Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).

       Specifically, the Court stated,

               A mandatory presumption instructs the jury that it must infer the
               presumed fact if the State proves certain predicate facts. A permissive
               inference suggests to the jury a possible conclusion to be drawn if the
               State proves predicate facts, but does not require the jury to draw that
               conclusion.
       Id. The Court also pointed out that the challenged portion of the instruction

       “must be considered in the context of the charge as a whole.” Id. at 315. The

       Court advised that other instructions might explain the infirm language, so that

       the jury would not consider the instruction in question to create a mandatory

       presumption. Id. Despite these considerations, the Court in Francis held that

       the instructions preceding it created a mandatory presumption. These

       instructions read, “acts of a person of sound mind and discretion are presumed

       to be the product of the person’s will” and “a person ‘is presumed to intend the

       natural and probable consequences of his acts.’” Id. at 316. Moreover, the

       Court reasoned that the infirmity of these instructions was not cured by the

       language that followed in the instructions. Id.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 13 of 19
[23]   Ten years later, our supreme court concluded in Winegeart v. State, 665 N.E.2d

       893, 904 (Ind. 1996), that it was not fundamental error to read an instruction,

       which includes the phrase that the jury may infer that every person intends the

       natural and probable consequences of his voluntary acts. Even though the

       appellant argued that such an instruction impermissibly relieved the State of its

       burden to prove specific intent, the court reasoned that the instruction’s

       repeated use of the word “may” throughout the instruction created only

       permissive inferences, and thus there was no error. Id. But see Walker v. State,

       632 N.E.2d 723, 724 (Ind. 1994) (holding on rehearing that the instruction

       “[e]very man is presumed to intend the natural consequences of his acts”

       denied defendant fundamental due process and the neighboring instructions

       failed to explain that the State had the burden of proof), reh’g denied.


[24]   More recently, our court held that informing the jury that the law presumes that

       an individual intends the consequences of his act was fundamentally erroneous.

       Matthews v. State, 718 N.E.2d 807, 810 (Ind. Ct. App. 1999). The court

       emphasized that this instruction covered one of the elements charged, the

       defendant’s intent, and the other instructions regarding intent given at a later

       date did not serve to qualify the instruction. Id.


[25]   The most recent pronunciation on the issue can be found in Lampkins v. State,

       749 N.E.2d 83 (Ind. Ct. App. 2001), trans. denied. Similar to the language in

       Sandstrom and Matthews, the disputed jury instruction in Lampkins read, “[t]he

       law presumes that an individual intends the natural consequences of his act.”

       Id. at 87. The court noted that “[u]nlike Jacks and Wingeart, where the

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 14 of 19
       instructions in question read that the jury may infer intent, the instruction here

       implied an irrebutable presumption that if Lampkins fired the gun, the law

       presumed intent.” Id. Likening the jury instruction to the type of language

       struck down in Francis, the Lampkins court concluded that the instruction was

       defective as it failed to inform the jury that “any inferences made from

       Lampkins’ actions are permissive.” Id. This error was not cured as the

       surrounding instructions “did not serve to qualify the mandatory presumption.”

       Id.


[26]   By instructing that “[a] person is presumed to have caused the reasonable

       results of his own act[]” in the instant case, the jury was tendered an

       irrebutable, mandatory presumption. The mere substitution of the verb ‘intend’

       with the verb ‘cause’ is not enough to lift the instruction into the realm of

       permissible jury instructions. In the context used, it is clear that the jury could

       have interpreted the instruction similar to the Lampkins instruction, which

       directed them to presume Kirby intended the reasonable results of her own

       actions.


[27]   The additional instructions tendered to the jury do not explain the

       constitutionally infirm language. Prior to the defective instruction, the jury was

       told that “[e]ngaging in conduct while aware of a high probability that it will

       result in a murder of someone is sufficient to sustain a conviction even if the

       [d]efendant is not aware of the identity of the victim.” (D.A. Tr. p. 2847). The

       contested jury instruction is followed by the directive that “[u]nder the law of

       this state you must presume the [d]efendant is innocent. You must continue to

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 15 of 19
       believe she is innocent throughout the trial unless the state proves the

       [d]efendant is guilty beyond a reasonable doubt of every essential element of the

       crime charged.” (D.A. Tr. pp. 2847-48). “[G]eneral instructions as to the

       State’s burden and the defendant’s presumption of innocence are not enough to

       cure any infirmity in the challenged portion of the instruction.” Geiger v. State,

       721 N.E.2d 891, 895-96 (Ind. Ct. App. 1999) (citing Francis, 471 U.S. at 319).

       Accordingly, as the jury instruction was constitutionally defective, the issue was

       clearly stronger than the issues raised by appellate counsel on direct appeal.


[28]   Nonetheless, even though Kirby’s appellate counsel’s choice in appellate issues

       was not reasonable, Kirby did not demonstrate “a reasonable probability that,

       but for counsel’s error, the result of the proceeding would have been different.”

       Johnson, 832 N.E.2d at 996. Even though the instruction was erroneous, we

       agree with the post-conviction court that after the jury was instructed, no undue

       attention was placed on it. The trial court tendered the short one-sentence

       instruction and thereafter, neither party referenced it during closing argument.

       Rather, the State repeatedly addressed the different elements it had to establish

       for a guilty verdict, including the intent element. Both sides uniformly and

       repeatedly urged the jury to determine Kirby’s state of mind at the time of the

       collision.


[29]   Moreover, even if a proper instruction would have been tendered, the jury

       would still have “summarily rejected Kirby’s intent defense of psychosis

       induced by hyperthyroidism.” (PCR App. p. 102). Based on the voluminous

       evidence presented—approximately forty eyewitnesses, fifteen professional

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 16 of 19
       witnesses, and two accident reconstruction expert witnesses—the jury would

       have reached a the same guilty verdict by concluding that, at the time of the

       accident, Kirby was suicidal, “a woman on a mission,” because Tinnie had

       rejected her, she believed she would be arrested for dealing drugs, and she was

       afraid to lose her children. (D.A. App. p. 2753). Therefore, Kirby did not

       receive ineffective assistance of appellate counsel.


                                               CONCLUSION

[30]   Based on the foregoing, we conclude the Kirby received effective assistance of

       counsel and therefore, the post-conviction court properly denied Kirby’s

       petition for post-conviction relief.


[31]   Affirmed.


[32]   Altice, J. concurs in part and concurs in result in part as to Issue 2 with separate

       opinion


[33]   Brown, J. concurs with concurring in part and concurring in result in part as to

       Issue 2 separate opinion




       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 17 of 19
                                    IN THE
                          COURT OF APPEALS OF INDIANA

       Judy Kirby,                                                )
                                                                  )
               Appellant-Petitioner,                              )
                                                                  )
                       vs.                                        )       No. 55A01-1503-PC-85
                                                                  )
       State of Indiana                                           )
                                                                  )
               Appellee-Respondent.                               )
                                                                  )



       ALTICE, Judge, concurring in part and concurring in result in part.



[34]   I agree with my colleagues’ analysis and conclusion that Kirby did not receive

       ineffective assistance of trial counsel. As for Kirby’s claim of ineffective

       assistance of appellate counsel, I must part ways with the majority’s analysis.

       The instructional issue presented by post-conviction counsel is, in my mind,

       neither significant and obvious from the face of the record nor clearly stronger

       than the issues raised by appellate counsel on direct appeal.


[35]   The law is clear, as set out in detail in the lead opinion, that an instruction

       regarding intent may not create a mandatory presumption in favor of the State.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 18 of 19
       In other words, the jury may not be instructed along the lines that the law

       presumes that an individual intends the natural consequences of his act.

       Lampkins v. State, 749 N.E.2d 83, 85-87 (Ind. Ct. App. 2001), trans. denied. See

       also Matthews v. State, 718 N.E.2d 807, 810 (Ind. Ct. App. 1999) (holding that

       informing the jury that the law presumes that an individual intends the

       consequences of his act was fundamentally erroneous).


[36]   In this case, the State tendered an erroneous instruction regarding intent: “a

       person is presumed to have intended the reasonable results of her own act.”

       D.A. Transcript at 2727 (emphasis supplied). The trial court, properly, did not

       give the instruction as proposed. The court modified the instruction by

       removing the reference to intent and, instead, instructing the jury that “[a]

       person is presumed to have caused the reasonable results of her own acts.” Id. at

       2847 (emphasis supplied). While this brief instruction is not a model of clarity,

       I fail to see how it can be read to impose a mandatory presumption regarding

       intent. Moreover, I agree with the post-conviction court’s recognition of the

       “benign placement” of the complained-of sentence, which, unlike in Lampkins,

       was not part of the mens rea instruction. PCR Appendix at 129.


[37]   On the issue of appellate counsel’s effectiveness, I would conclude that counsel

       did not err in failing to challenge this jury instruction on direct appeal.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-PC-85 | December 10, 2015   Page 19 of 19
