                                                                                  FILED
                                                                          Nov 14 2019, 6:01 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      A. David Hutson                                           Curtis T. Hill, Jr.
      Hutson Legal                                              Attorney General of Indiana
      Jeffersonville, Indiana
                                                                Caroline G. Templeton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Donald A. Pierce,                                         November 14, 2019
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                18A-PC-2848
              v.                                                Appeal from the Crawford Circuit
                                                                Court
      State of Indiana,                                         The Honorable Sabrina R. Bell,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Cause No.
                                                                13C01-1204-PC-1



      Najam, Judge.


                                        Statement of the Case
[1]   Donald A. Pierce appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Pierce raises five issues for our review, which we restate

      as the following two issues:

      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019                           Page 1 of 34
              1.       Whether the post-conviction court’s findings and
                       conclusions are adequate.


              2.       Whether the post-conviction court clearly erred when it
                       found and concluded that Pierce had not received
                       ineffective assistance from his trial counsel.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts underlying Pierce’s multiple child molesting convictions were detailed

      by this Court in his direct appeal:


              The facts most favorable to the jury’s verdict indicate that J.W.
              was born on October 10, 1995. Her parents eventually divorced,
              and J.W. lived with her mother, Michelle. Michelle began dating
              Donald A. Pierce, and around the time J.W. was turning ten
              years old, Pierce moved into the home J.W. shared with her
              mother. Due to Michelle’s work schedule, Pierce regularly spent
              time alone with J.W.


              One day, in April of 2006, Pierce was home alone with J.W.
              when he began touching her on her vagina through her clothes.
              Pierce then asked J.W. if she wanted to play a game. Pierce
              instructed J.W. to take off her clothes and lie on the couch.
              Pierce removed his clothes, laid on top of J.[W]., and put his
              “private” on her “private.” Pierce then began to move up and
              down on top of J.W. After Pierce was finished, J.W. discovered
              that her “private” was all wet. J.W. felt disgusted.


              Pierce and J.W. played that “game” again the following
              weekend. They played the game approximately every other
              weekend, when J.W. was not visiting her father, for over one

      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019      Page 2 of 34
              year. On some occasions, Pierce put his mouth on J.W.’s
              “private.” On some occasions, Pierce put his penis inside J.W.’s
              “private.” And, on some occasions, Pierce touched J.W.’s
              “private” with his hand.


      Pierce v. State, No. 13A04-0908-CR-480, 2010 WL 4253698, at *1 (Ind. Ct. App.

      Jan. 6, 2011) (citations omitted), summarily aff’d in relevant part and vacated on

      other grounds, 949 N.E.2d 349, 351 (Ind. 2011). On direct appeal, we affirmed

      Pierce’s convictions and remanded with instructions for the trial court to correct

      a sentencing error. Id. However, on transfer, our Supreme Court exercised its

      discretion to revise Pierce’s sentence pursuant to Indiana Appellate Rule 7(B).

      949 N.E.2d at 352-53. In all other respects, our Supreme Court declined to

      review our Court’s resolution of Pierce’s appeal. Id. at 351.


[4]   Thereafter, Pierce filed an amended petition for post-conviction relief in which

      he alleged that he had received ineffective assistance from his trial counsel. In

      particular, Pierce first alleged he had received ineffective assistance because his


              trial counsel failed to investigate potential exculpatory evidence.
              She failed to obtain medical and/or psychological notes and/or
              police reports that would have included information that could
              have been used to impeach J.W. Pierce’s trial counsel failed to
              conduct a full fact investigation and to call witnesses who could
              have supported Pierce’s innocence.


      Appellant’s App. Vol. 2 at 54. He further alleged that his trial counsel had

      rendered ineffective assistance when she had “failed to object to child abuse

      syndrome evidence and other prejudicial evidence.” Id. And he alleged that his


      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019         Page 3 of 34
      counsel had ineffectively failed to “withdraw from Pierce’s representation when

      a personal conflict of interest arose during the trial.” Id.


[5]   Following an evidentiary hearing, the post-conviction court rejected each of

      Pierce’s three alleged bases of ineffective assistance of trial counsel. Regarding

      Pierce’s claim that his trial counsel had failed to investigate, the post-conviction

      court found and concluded as follows:


              28. Trial [c]ounsel testified that she believed she had obtained
              the child’s mental health records and would have passed them on
              if she had them in her possession.


              29. The counseling records were admitted as an exhibit at the
              post-conviction hearing. No evidence was admitted that showed
              that[,] had the records been admitted, the outcome of the trial
              would have been different.


              30. Trial counsel testified that she did not subpoena the Kosair
              [Hospital] records because, based on her experience, she did not
              expect anything useful to be found in those records. The records
              did not reveal anything that would indicate a change in the
              outcome of the trial.


              31. Kosair Hospital records were admitted as an exhibit at the
              post-conviction hearing and contained the following information:


                       a. The records state that “Pt. disclosed to paternal
                       grandparents that her mother’s boyfriend had been in bed
                       with her ‘3 or 4 times.’ She states she woke up from sleep
                       with him on top of her. Las[t] time was about 2 months
                       ago. Had her first period about 1 month ago?[”]



      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019         Page 4 of 34
                 b. The records also state “11 y/o Caucasian . . . being
                 allegedly sexually assaulted by mom’s boyfriend. Has
                 happened several times over last few months
                 [indecipherable.] He puts his private in her
                 private . . . puts [sic] like to have a baby . . . .”


                                            ***


        32. Trial [c]ounsel testified she attempted to have an expert
        witness, a psychiatrist from Indianapolis, to try to find something
        to say that what [Pierce] was saying was the truth.


        33. Trial [c]ounsel testified she made the decision not to call the
        witness because his testimony would have been very damaging.


        34. Further, she kept the information as attorney work product.


        35. Trial [c]ounsel testified that Amy Razor admitted she would
        perjure herself and give [Pierce] an alibi.


        36. Trial [c]ounsel testified her own witnesses had nothing to
        add.


                                            ***


                          Failure to Subpoena Kosair Records


        34. Trial counsel did not subpoena the child’s medical records
        from Kosair Hospital[] because[,] in her experience, there was
        nothing of consequence that would come from the records.


        35. The records from Kosair Hospital were admitted at the post-
        conviction hearing. There was no evidence admitted that the

Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019         Page 5 of 34
        admission of the records would have changed the outcome of the
        trial.


                                            ***


                       Failure to Subpoena Counseling Records


        37. Trial counsel believed she had obtained all of the child’s
        mental health records, and [she] would have passed them on if
        she had them in her possession.


                                            ***


        39. Trial [c]ounsel testified that she did obtain the mental health
        records. There was no evidence presented that the mental health
        records would have been admitted into evidence or that the
        admission of the counseling records would change the outcome
        of trial.


                               [Failure to Call Witnesses]


        40. Trial counsel’s failure to call witnesses is a matter of strategy
        on counsel’s part . . . .


        41. Trial [c]ounsel chose not to call the previously mentioned
        witnesses because they had nothing to add and she had a duty to
        prevent putting what she knew to be false information before the
        Court.


Id. at 151-52, 159-60.




Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019       Page 6 of 34
[6]   Regarding Pierce’s claim that his trial counsel had rendered ineffective

      assistance by failing to object to the admission of certain evidence at trial, the

      post-conviction court found and concluded as follows:


              21. Trial [c]ounsel testified the whole defense was that the victim
              was a liar.


              22. Trial [c]ounsel testified that victim’s therapist, Teresa
              Faulkner, believed the victim.


              23. At trial, the State, without objection from trial counsel,
              elicited testimony from Teresa Faulkner . . . as to the types of
              behaviors exhibited in children who have been abused, the profile
              of a typical child molesting victim, and the way that abuse by a
              child molester begins.


              24. Trial counsel did not object to this testimony because, based
              on her experience, including observations of that particular trial
              court judge, she did not think such an objection would be
              sustained.


              25. Trial [c]ounsel testified she did not cross-examine the
              therapist and wanted her off the stand quickly.


              26. Trial [c]ounsel stated the therapist believed [Pierce] was
              guilty and she was not going to change her mind. The more the
              therapist was on the stand, the more damage she would be doing
              to [Pierce].


              27. Trial [c]ounsel’s testimony is clear she made strategic
              decisions regarding Ms. Faulkner’s testimony.


                                                  ***
      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019        Page 7 of 34
                                   Drumbeat Repetition


        19. Thomas Williams, Michelle Williams, and Debra Young all
        testified to victim’s allegations prior to the victim testifying
        herself.


        20. “Drumbeat repetition” is the repetition of a victim’s out-of-
        court statements prior to the victim’s own testimony. Stone v.
        State, 535 N.E.2d 534 (Ind. Ct. App. 1989); Modesitt v. State, 578
        N.E.2d 649 (Ind. 1991); Kindred v. State, 973 N.E.2d 1245 (Ind.
        Ct. App. 2012).


        21. The danger of “drumbeat repetition” is that, where the child
        victim’s credibility is of critical importance and her story is
        repeated over and over by adults, the victim’s story becomes
        increasingly unimpeachable as each adult added his or her
        personal eloquence, maturity, emotion and professionalism to the
        victim’s out-of-court statements. Stone v. State, 535 N.E.2d at
        540-541.


        22. Thus, an objection to drumbeat repetition of a victim’s out-
        of-court statements will be sustained where the child victim’s
        credibility is of critical importance and her story is repeated over
        and over by adults before the jury hears her testify. Id.


        23. Trial [c]ounsel testified that she had observed the trial court
        judge in prior child molest cases and was familiar with his rulings
        and what kind of testimony he allowed in. She stated she did not
        object to try and draw any more attention to that testimony.


        24. Trial [c]ounsel’s decision not to object to drumbeat
        testimony was a trial strategy and does not meet the standard of
        ineffective assistance of counsel. Furthermore, there was no



Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019          Page 8 of 34
        evidence presented that showed the verdict would have been
        different if she made those objections.


        25. The Court concludes that [t]rial [c]ounsel strategically chose
        not to object . . . .


                       Child Sexual Abuse Syndrome Evidence


        26. The Indiana Supreme Court has defined Child Abuse
        Syndrome Evidence as evidence of “typical” behavior profiles or
        patterns of victims of child sexual abuse. Stewar[d] v. State, 652
        N.E.2d 490, 493 (Ind. 1995).


        27. Such evidence is only admissible when offered by the State if
        the defense discusses or presents evidence of unexpected
        behavior patterns seemingly inconsistent with a claim of abuse.
        Id. at 499. Such evidence must also relate to the specific
        unexpected behavior raised by the defense. Id.


        28. Teresa Faulkner testified that a typical victim of child abuse
        might “internalize it” and “show a lot of symptoms of anxiety,
        depression, regressive type behaviors” or, on the other side of the
        spectrum, “you will see acting out behavior, sexualized behavior,
        those types of things.”


        29. She further testified child molesting victims are often times in
        need of attention, from a broken family, eager to please, loyal,
        and needy. She further testified that there is a pattern of how
        molestation begins and ends.


        30. Again, [t]rial [c]ounsel testified that she knew what
        testimony the trial court judge would let in and not let in and that
        is why she did not object to the testimony by Teresa Faulkner.
        This was a trial strategy . . . and does not rise to the level of

Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019        Page 9 of 34
              ineffective assistance of counsel. Furthermore, there was no
              evidence presented that showed[,] if the testimony was not
              allowed in, the verdict would have been different.


              31. Further, [t]rial [c]ounsel testified she wanted Ms. Faulkner
              off the stand and did not want to prolong her testimony. She felt
              the longer Ms. Faulker was on the stand, the more damage she
              was causing to [Pierce].


              32. The Court concludes that [t]rial [c]ounsel strategically chose
              not to object . . . .


      Id. at 150-51, 156-58.


[7]   Finally, regarding Pierce’s claim that he received ineffective assistance of

      counsel when she had failed to withdraw following a purported conflict of

      interest, the post-conviction court found and concluded as follows:


              37. Trial [c]ounsel testified she received a threat either right
              before or right after the guilty verdict.


              38. Trial [c]ounsel testified that [Pierce] had told counsel’s
              assistant that[,] if he was found guilty, he and his brother would
              kill the Judge and both Prosecutors, and that his brother had just
              purchased a gun.


              39. Trial [c]ounsel testified that she immediately asked for an in-
              chambers meeting and said threats had been made.


              40. Trial [c]ounsel testified she waited with law enforcement for
              several hours before leaving because she was scared and didn’t
              feel safe.


      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019      Page 10 of 34
              41. Trial [c]ounsel testified there were people driving through the
              parking lot and there was a lot of commotion after the trial, and
              her car suffered minor damage.


              42. Counsel filed a Motion to Withdraw on October 28, 2008[,]
              before sentencing.


                                                  ***


              43. The Court concludes that no actual conflict of interest
              existed during Pierce’s trial.


              44. There was no evidence presented by [Pierce] that he was
              prejudiced in any way by [t]rial [c]ounsel’s representation or
              what she did not object to or fail to enter into evidence.


      Id. at 152-53, 161. The court then denied Pierce’s petition for post-conviction

      relief, and this appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

[8]   Pierce appeals the post-conviction court’s denial of his petition for post-

      conviction relief. As our Supreme Court has made clear, post-conviction

      proceedings are not a “super-appeal.” Garrett v. State, 992 N.E.2d 710, 718

      (Ind. 2013) (quotation marks omitted). Rather, they provide “a narrow remedy

      to raise issues that were not known at the time of the original trial or were

      unavailable on direct appeal.” Id. As the petitioner in such proceedings bears

      the burden of establishing relief in the post-conviction court, when he appeals


      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019    Page 11 of 34
      from the denial of his petition he “stands in the position of one appealing from

      a negative judgment.” Id. To obtain our reversal of a negative judgment, the

      appealing party “must show that the evidence as a whole leads unerringly and

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

      court.” Id. We will not defer to the post-conviction court’s legal conclusions,

      but we will reverse its findings and judgment “only upon a showing of clear

      error—that which leaves us with a definite and firm conviction that a mistake

      has been made.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019)

      (quotation marks omitted). We may affirm a post-conviction court’s judgment

      “on any theory supported by the evidence.” Dowdell v. State, 720 N.E.2d 1146,

      1152 (Ind. 1999).


                              Issue One: Adequacy of the Post-Conviction
                                   Court’s Findings and Conclusions

[9]   Pierce first asserts that the post-conviction court’s findings and conclusions are

      so inadequate that meaningful appellate review is not possible. 1 Indiana Post-

      Conviction Rule 1 § 6 requires a post-conviction court to enter findings of fact

      and conclusions of law in granting or denying a petition for relief. Where such




      1
         We reject the State’s argument on appeal that Pierce waived this issue for our review because he “failed to
      file a motion to correct error[]” in the post-conviction court. Appellee’s Br. at 25. Indiana Trial Rule 59(A)
      states that a motion to correct error is mandatory and a prerequisite for appeal only in two circumstances: to
      address “[n]ewly discovered evidence” that “could not have been discovered and produced at trial” or to
      address “[a] claim that a jury verdict is excessive or inadequate.” Trial Rule 59(A) adds that “[a]ll other
      issues and grounds for appeal appropriately preserved during trial may be initially addressed in the appellate
      brief.” As the adequacy of a post-conviction court’s findings cannot be complained about prior to its entry,
      and as such a judgment is neither newly discovered evidence nor an excessive or inadequate jury verdict, the
      party appealing the judgment may raise its adequacy for the first time on appeal.

      Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019                            Page 12 of 34
       findings and conclusions “do not adequately address” the issues raised in the

       petition such that “we cannot conduct an adequate review” of those issues, we

       will remand with instructions for the post-conviction court to enter proper

       findings of fact and conclusions of law. N.R.G. v. Ind. Dep’t of Child Servs. (In re

       N.G.), 61 N.E.3d 1263, 1265-66 (Ind. Ct. App. 2016). We review the facial

       adequacy of a post-conviction court’s judgment de novo. See, e.g., Deen-Bacchus

       v. Bacchus, 71 N.E.3d 882, 885 (Ind. Ct. App. 2017).


[10]   We acknowledge that several of the post-conviction court’s purported findings

       of fact appear to be mere recitations of witness testimony, which, standing

       alone, are technically incorrectly labeled as “findings” of fact. E.g., Pitcavage v.

       Pitcavage, 11 N.E.3d 547, 553 (Ind. Ct. App. 2014). However, it is clear from

       the whole of the court’s judgment that it adopted the testimony that it had

       recited, and in such circumstances the adopted testimony is properly considered

       on appeal to be a finding of fact. Id. Moreover, and in any event, we will not

       remand for the entry of technically correct findings when the post-conviction

       court’s judgment as a whole, while perhaps containing some “faulty language,”

       makes its “theory” of the judgment clear to the parties, enabling them to

       “formulate intelligent and specific arguments” for our review. Id. at 558. The

       post-conviction court’s judgment as a whole here is adequate; any technically

       incorrect language aside, the court’s theory of decision is clear, the parties

       plainly understood it, and they have cogently and specifically argued the merits

       of their respective positions to this Court accordingly. There is no reversible

       error on this issue.

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019      Page 13 of 34
                         Issue Two: Ineffective Assistance of Counsel Claims

[11]   Pierce next asserts that the post-conviction court erred when it found that he

       was not denied the effective assistance of trial counsel. The Sixth Amendment

       to the United States Constitution guarantees criminal defendants the right to

       counsel and mandates that “the right to counsel is the right to effective

       assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). As

       our Supreme Court has explained:


               When evaluating a defendant’s ineffective-assistance-of-counsel
               claim, we apply the well-established, two-part Strickland test. The
               defendant must prove: (1) counsel rendered deficient
               performance, meaning counsel’s representation fell below an
               objective standard of reasonableness as gauged by prevailing
               professional norms; and (2) counsel’s deficient performance
               prejudiced the defendant, i.e., but for counsel’s errors the result of
               the proceeding would have been different.


       Bobadilla, 117 N.E.2d at 1280 (citations omitted).


[12]   Pierce asserts that he received ineffective assistance of trial counsel for the

       following reasons: (A) his trial counsel permitted alleged drumbeat evidence to

       be heard by the jury; (B) she did not object to evidence that J.W. suffered from

       child abuse syndrome; (C) she did not investigate J.W.’s medical and

       counseling records prior to trial; (D) she did not move to withdraw upon the

       appearance of a purported conflict of interest; and (E) she did not call witnesses

       that Pierce believes would have provided him with favorable testimony. We

       address each of Pierce’s arguments in turn.


       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019      Page 14 of 34
                                      A. Alleged Drumbeat Evidence


[13]   We first consider Pierce’s argument that the post-conviction court clearly erred

       when it denied his claim that he had received ineffective assistance of trial

       counsel when his counsel permitted the jury to hear alleged drumbeat evidence.

       “There is a strong presumption that counsel rendered adequate assistance and

       made all significant decisions in the exercise of reasonable professional

       judgment.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018). “Counsel is

       afforded considerable discretion in choosing strategy and tactics and these

       decisions are entitled to deferential review.” Id. Further, “poor strategy” and

       “instances of bad judgment do not necessarily render representation

       ineffective.” Id. at 984.


[14]   The post-conviction court found that Pierce’s trial counsel permitted the jury to

       hear, prior to J.W.’s testimony, testimony from three witnesses who each

       detailed J.W.’s accounts of Pierce’s molestations to them. However, the post-

       conviction court concluded that Pierce could not establish ineffective assistance

       of counsel on this claim because his trial counsel had permitted the jury to hear

       those additional witness accounts as a matter of trial strategy. In particular, the

       post-conviction court found that Pierce’s trial counsel had reasonably

       concluded that, in her opinion, the trial judge would not have sustained any

       objection to drumbeat evidence and, as such, she did not bother to object.


[15]   We agree with the post-conviction court’s conclusion that Pierce’s trial counsel

       permitted this evidence to be heard by the jury pursuant to her trial strategy,


       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019    Page 15 of 34
       although we agree with that conclusion for reasons supported by the record

       other than those found by the post-conviction court. See Dowdell, 720 N.E.2d at

       1152. In particular, the trial transcript makes the defense strategy abundantly

       clear: trial counsel sought to paint J.W. as a liar, and she wanted the jury to

       hear as many different versions of J.W.’s “stories” as possible. Trial Tr. Vol. 2

       at 104-05. 2


[16]   Indeed, four sentences into her opening statement to the jury, Pierce’s trial

       counsel first identified J.W. as a liar, saying that J.W. had told a “tale of being

       raped” by Pierce. Id. at 104. Pierce’s trial counsel continued her opening

       statement as follows:


                  For three short weeks, the tale expanded. All sorts of
                  new . . . details emerged. To cover up the lies[] she told the first
                  time, she said I lied about what I said the first time. From there,
                  [J.W.] just kept lying. Desperate people do desperate things.
                  [J.W.] has told seven versions. Do they match? No they don’t.
                  You ladies and gentlemen are going to get to hear all of them.


       Id. at 105 (emphasis added). Pierce’s trial counsel then explicitly went over the

       expected witness testimony and detailed how, according to her, J.W.’s story

       changed each time. She concluded: “Pay attention to how the versions keep

       getting bigger and bigger. . . . [I]t is our intention to show you that the

       allegations being made are false.” Id. at 108.




       2
           Our pagination of the original trial transcript is based on the .pdf pagination.


       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019                  Page 16 of 34
[17]   Trial counsel’s decision to permit the various witnesses to then inform the jury

       of the details of J.W.’s recounting of Pierce’s molestations to each of them was

       counsel’s explicit strategy. Trial counsel wanted the jury to hear all of the

       different versions of the molestations that J.W. had reported because counsel

       wanted to use the variances among those versions to undermine J.W.’s

       credibility. The fact that that strategy did not work out for Pierce does not

       demonstrate that Pierce received ineffective assistance of counsel.


[18]   It is of no moment for Pierce to assert that, if objected to, the recountings of his

       molestations of J.W. by other witnesses would have been deemed inadmissible.

       Trial counsel in that scenario would have been left with trying to attack J.W.’s

       credibility in isolation. That counsel here determined the marginal gain of

       possible lines of attack on J.W.’s credibility from the additional evidence to

       outweigh the marginal detriment of having the jury hear of the molestations by

       more than one witness was a call to be made by counsel in her professional

       discretion. We affirm the post-conviction court’s judgment on this issue.


                                          B. Child Abuse Syndrome


[19]   Pierce next asserts that the post-conviction court clearly erred when it denied

       his claim that he had received ineffective assistance of trial counsel when his

       counsel failed to object to Faulkner’s testimony regarding child abuse

       syndrome. In order to prevail on a claim of ineffective assistance due to trial

       counsel’s failure to object, the post-conviction petitioner “must show a

       reasonable probability that the objection would have been sustained if made.”


       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019     Page 17 of 34
       Garrett v. State, 992 N.E.2d 710, 723 (Ind. 2013). However, “once a child’s

       credibility is called into question, proper expert testimony” regarding child

       abuse syndrome “may be appropriate.” Steward v. State, 652 N.E.2d 490, 499

       (Ind. 1995).


[20]   Here, as trial counsel’s opening statement made clear, J.W.’s credibility was

       immediately called into question, and Pierce’s counsel pursued that strategy

       throughout the State’s case-in-chief and her cross-examination of J.W. After

       Pierce’s trial counsel had cross-examined J.W., the State called Faulkner as a

       witness. Faulkner testified, among other things, that victims of child sexual

       abuse “[a]lmost always” do not report everything at first but, instead, report the

       molestations “in segments.” Trial Tr. Vol. 3 at 42.


[21]   In other words, Pierce’s trial counsel opened the door by questioning J.W.’s

       credibility. This enabled the State to rebut Pierce’s argument by calling

       Faulkner to explain why J.W.’s accounts of the molestations may have been

       inconsistent. Thus, had Pierce’s trial counsel objected to Faulkner’s testimony

       on the ground that it was inadmissible evidence of child abuse syndrome, the

       trial court would not have been required to sustain the objection. We therefore

       affirm the post-conviction court’s judgment on this issue.


                              C. J.W.’s Medical and Counseling Records


[22]   Pierce next asserts that the post-conviction court clearly erred when it denied

       his claim that he had received ineffective assistance of trial counsel when his



       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019   Page 18 of 34
       counsel failed to obtain J.W.’s medical and counseling records prior to trial. As

       our Supreme Court has noted:


               With the benefit of hindsight, a defendant can always point to
               some rock left unturned to argue counsel should have
               investigated further. The benchmark for judging any claim of
               ineffectiveness must be whether counsel’s conduct so
               undermined the proper functioning of the adversarial process that
               it deprived the defendant of a fair trial. . . . [W]e review a
               particular decision not to investigate by looking at whether
               counsel’s action was reasonable in light of all the circumstances.
               In other words, counsel has a duty to make a reasonable
               investigation or to make a reasonable decision that the particular
               investigation is unnecessary. A strategic choice not to
               present . . . evidence made after thorough investigation of law
               and relevant facts is virtually unchallengeable, but a strategic
               choice made after less than complete investigation is
               challengeable to the extent that reasonable professional judgment
               did not support the limitations on the investigation. . . .


       Ritchie v. State, 875 N.E.2d 706, 719-20 (Ind. 2007) (citations omitted).

       Moreover, “establishing this ground for ineffective assistance . . . require[s]

       going beyond the trial record to show what the investigation, if undertaken,

       would have produced” in order to satisfy the prejudice prong of an ineffective-

       assistance claim. Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998).


[23]   Assuming for the sake of argument that Pierce’s trial counsel unreasonably

       failed to investigate, obtain, and have admitted J.W.’s medical and counseling

       records, we agree with the post-conviction court’s conclusion that there was

       “nothing of consequence . . . from the records” that would have “change[d] the

       outcome of the trial.” Appellant’s App. Vol. 2 at 159-60. Pierce asserts that the
       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019       Page 19 of 34
       medical records “could have been used to establish additional inconsistencies”

       in J.W.’s allegations and that the counseling records could have been used to

       show that J.W.’s mother doubted J.W.’s truthfulness. 3 Appellant’s Br. at 28.

       But the substance of the medical records was presented to the jury by way of the

       examining nurse’s testimony; the medical records themselves would have been

       merely cumulative of that testimony. And in her cross-examination of J.W.’s

       mother, Pierce’s trial counsel confronted the mother—and attempted to

       impeach her with prior deposition testimony—with whether the mother

       doubted J.W.’s recounting of the molestations. J.W.’s counseling record to the

       same effect would not have changed the outcome of Pierce’s trial. We affirm

       the post-conviction court’s judgment on this issue.


                                        D. Purported Conflict of Interest


[24]   Pierce next asserts that the post-conviction court clearly erred when it denied

       his claim that he had received ineffective assistance of trial counsel when his

       counsel failed to withdraw after a purported conflict of interest arose. But the

       post-conviction court found that no conflict of interest existed during Pierce’s

       trial, and that finding is supported by the record. In particular, trial counsel

       testified that the purported conflict of interest—threats made against her—

       occurred only “at the end of the trial. It wasn’t during the trial.” P-C. Tr. at 19.




       3
         Pierce also asserts that J.W.’s counseling records showed that she doubted another child’s sexual-assault
       claim against J.W.’s father, but we agree with the State that this additional information is not clearly relevant
       to J.W.’s allegations against Pierce, to say nothing of meeting the high burden of establishing Strickland
       prejudice.

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019                              Page 20 of 34
       And Pierce does not demonstrate that the delay between the verdict and trial

       counsel’s motion to withdraw had any ultimate relevance. Accordingly, Pierce

       cannot show that the post-conviction court’s judgment on this issue is clearly

       erroneous, and we affirm.


                                 E. Purported Failure to Call Witnesses


[25]   Finally, Pierce asserts that the post-conviction court clearly erred when it

       denied his claim that he had received ineffective assistance of trial counsel when

       his counsel failed to call three witnesses that Pierce asserts would have provided

       him with favorable testimony. But trial counsel testified that she did not call

       two of the proposed witnesses because they “did not have anything that was

       helpful to [Pierce] at all” and she did not call a third because that witness had

       “indicated that [she] would perjure [herself] intentionally to help [Pierce].” Id.

       at 9. Pierce’s argument on appeal does not demonstrate that trial counsel’s

       explanation was substantially incorrect with respect to any of those witnesses.

       As such, Pierce cannot show that the post-conviction court clearly erred when it

       rejected Pierce’s claim of ineffective counsel on this issue.


                                                  Conclusion
[26]   In sum, we affirm the post-conviction court’s denial of Pierce’s petition for post-

       conviction relief.


[27]   Affirmed.




       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019    Page 21 of 34
May, J., concurs.


Bailey, J., dissents with separate opinion.




Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019   Page 22 of 34
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Donald A. Pierce,                                         Court of Appeals Case No.
                                                                 18A-PC-2848
       Appellant-Petitioner,

               v.

       State of Indiana,
       Appellee-Respondent.


       Bailey, Judge, dissenting.


[28]   Pierce contends he was denied effective assistance of trial counsel and identifies

       several alleged deficiencies. I agree with the majority’s discussion as to conflict

       of interest and counsel’s failures to subpoena medical and psychological records

       and to present certain witnesses. Nonetheless, I am convinced that trial counsel

       rendered ineffective assistance in that she simply took a fatalistic approach to

       the trial and wholly failed to challenge any testimony by any State witness,

       including drumbeat repetition of J.W.’s allegations and child abuse syndrome

       testimony.




       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019                 Page 23 of 34
[29]   Counsel purportedly believed that the jury would ultimately hear about J.W.’s

       evolving reports 4 and chose to pursue a strategy of showing J.W. to be a liar.

       Assuming this to be a reasonable strategy under the circumstances, the strategy

       would not have been undermined had counsel insisted that J.W.’s testimony

       not be preceded by a parade of witnesses providing much detail and explaining

       any inconsistency. And, while counsel was appropriately aware of the trial

       court’s past rulings and was respectful toward the trial court – she was there to

       advocate for her client and not necessarily appease the trial court. 5 Often, a trial

       strategy is not successful; but this does not mean that counsel should not even

       try. In my view, counsel sat idly by and permitted the State to conduct its case

       in the sequence and manner that could most efficiently and expediently bring

       about a conviction. 6 She did so without lodging a single objection that would




       4
        I term the reports of molestation to be “evolving” as opposed to “changing” because J.W.’s later statements
       provided additional detail but she did not at any time recant the initial accusations.
       5
        Counsel explained her lack of any objection to testimony from Grandfather, Father, Mother, Deputy
       Young, or Faulkner, as follows:
                  I had sat in on a child molest trial that was in the same court in front of Judge Lopp, at the time,
                  before [Pierce]’s and so I kind of knew what he let in and what he didn’t let in and so as a defense
                  attorney you always have to sit and think how much is it going to damage the client if you jump up
                  and down and make a big deal during someone’s testimony like this because the thing is I don’t
                  have any reason to think that [Faulkner] was lying or making up anything. I mean she happened to
                  believe J.W. and we didn’t. So again, that was just strategy of why am I going to jump up and
                  down and object to something that, I mean all these things that she testified to, I mean not in
                  reference to [Pierce], but just in reference of, to child molesters, is accurate.
       (P-C.R. Tr., pg. 15.)
       6
           She even acknowledged the “time-saving” benefit of a lack of objection:
                Well, you know, it’s hearsay, but she was on the witness list for them and she would, I would
                have called her had they not, so in my mind this was going to come in one way or the other, I
                mean it was saving time[.].
       (P-C.R. Tr., pg. 17.)

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019                             Page 24 of 34
       focus the trial court’s attention upon Pierce’s right, under the law, to promote

       preservation of the presumption of his innocence. And counsel apparently did

       not understand, as evidenced by her testimony at the post-conviction hearing,

       that she should – or even could – object. 7


[30]   To prevail on a claim of ineffective assistance due to the failure to object, a

       petitioner must show that an objection would have been sustained if made.

       Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007). By the time of Pierce’s trial,

       it was well-settled that a victim’s veracity should not be “vouchsafed,” that is,

       bolstered, by a parade of witnesses repeating accusations. Modesitt v. State, 578

       N.E. 2d 649, 651 (Ind. 1991). “Drumbeat repetition of the declarant’s

       statements prior to the declarant’s testifying and being subject to cross

       examination” was specifically disapproved of by our Indiana Supreme Court in

       Modesitt.


[31]   There, the defendant was on trial for child molestation and the prosecutor

       called three witnesses to recount what the victim had told them prior to calling

       the victim to testify; even then, the victim corroborated less than all the alleged




       7
        Counsel did not recognize that drumbeat testimony in the child victim context prompts heightened concern
       compared with repetitive testimony in the “asked and answered” context. When asked about considering an
       objection to drumbeat repetition of allegations, counsel summarized her perception:
              Even in civil cases, like divorce cases, you object and you say your honor this is asked and
              answered and they say well, it doesn’t matter and they let it in again, so I mean I’ve never been
              successful, on a repetitive or asked and answered unless you’ve just got a situation where the
              attorney is absolutely bullying your client and then that, you know, might be a different
              scenario, but we didn’t have that.
       (P-C.R. Tr. pg. 26.)

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019                             Page 25 of 34
       acts already testified about and was not asked if she had made the prior

       statements or whether the statements were, in fact, true. Id. at 650. The Court

       observed that, “by putting into evidence the victim’s out-of-court charges

       against Modesitt by three separate and repetitive witnesses prior to calling the

       victim herself, the prosecutor effectively precluded Modesitt from effective cross

       examination of these charges.” Id. at 651 (emphasis in original).


[32]   The Court was unable to “say that the drumbeat repetition of the victim’s

       original story prior to calling the victim to testify did not unduly prejudice the

       jury which convicted Modesitt.” Id. at 652. This was so because direct,

       immediate cross-examination of the statements was precluded, and “the

       victim’s veracity had been, in essence, vouchsafed by permitting the three

       witnesses to repeat the accusations of the victim.” Id. at 651.


[33]   The Court held “from this point forward, a prior statement is admissible as

       substantive evidence only if the declarant testifies at trial and is subject to cross

       examination concerning the statement, and the statement is (a) inconsistent

       with the declarant’s testimony, and was given under oath subject to the penalty

       of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b)

       consistent with the declarant’s testimony and is offered to rebut an express or

       implied charge against the declarant of recent fabrication or improper influence

       or motive, or (c) one of identification of a person made after perceiving the

       person.” Id. at 653-54.




       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019      Page 26 of 34
[34]   And prior to Modesitt, this Court recognized the prejudice inherent in the

       admission of cumulative out-of-court statements where the credibility of the

       child witness is “of critical importance to the State’s case.” Stone v. State, 536

       N.E.2d 534, 541 (Ind. Ct. App. 1989).


               Whether the jury could believe [Child]’s account of the
               molestation depended upon his credibility in its eyes. Without
               doubt the line between [Child]’s credibility became increasingly
               unimpeachable as each adult added his or her personal
               eloquence, maturity, emotion, and professionalism to [Child]’s
               out-of-court statements. Such rampant repetition probably built
               [Child]’s credibility to such a height Stone’s presumption of
               innocence was overcome long before he got to the stand to deny
               the charges against him.


       Id. at 540.


[35]   I acknowledge that counsel called J.W. a liar in her opening statement and that

       comments by counsel can sometimes open a door. That said, I do not believe

       that the bald assertion by defense counsel opened the floodgates. And the State

       unleashed a flood of hearsay testimony, met with no objection and no request

       for a limiting instruction. Specifically, J.W.’s grandfather (“Grandfather”)

       testified that J.W. had related “problems she was having” with Pierce. (Tr. Vol.

       II, pg. 119.) Grandfather provided some details of the “problem”:


               Well at first she told me she had woken up and he was fooling
               around with her, messing, I don’t remember what she said.
               Fooling around with her or messing around with her.




       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019     Page 27 of 34
       Id. Grandfather testified that J.W. had said to him “we [Pierce and J.W.] done

       it, papaw,” this had occurred “lots of times,” and it was sometimes “fun.” Id.

       at 130-31. J.W.’s father (“Father”) testified that he learned from J.W.’s

       maternal grandmother “what [J.W.] was saying” and Father began to “holler

       and cuss.” Id. at 144. Father contacted the Crawford County Sheriff’s

       Department and was connected to Deputy Debra Young (“Deputy Young”).

       Father also contacted Mother, who “kicked out” Pierce from her home. Id. at

       149. Father explained he had tried to be understanding toward Mother, as “the

       man she loved had just hurt her child.” Id. at 151. As for details of the

       accusations, Father stated “all I knew was that he had touched her.” Id. at 150.


[36]   In turn, Deputy Young testified that Father had contacted her after he “learned

       that [J.W.] had sexual contact with her mother’s boyfriend.” Id. at 167.

       Deputy Young explained that she had contacted the Department of Child

       Services and Mother; she had then arranged a collaborative interview because

       successive interviews tended to “re-victimize” the “victim.” Id. at 169.

       According to Deputy Young, Mother had evicted Pierce and Mother had

       “relayed” to her that “[J.W.] had told her there had been incidents with [Pierce]

       that he had been in her bedroom and she had awakened with him on top of

       her.” Id. at 170. Deputy Young continued: “[J.W.] did say that Andy Pierce

       had come into her room while she was asleep and that she would be awakened

       by him on top of her moving up and down.” Id. at 172.


[37]   Encouraged to provide additional details of J.W.’s allegations, Deputy Young

       explained that Pierce’s “private part” had been “hard” and “he had sexual

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019   Page 28 of 34
       intercourse with her approximately four times,” beginning around Valentine’s

       Day of 2007. Id. at 173-74. She related J.W.’s description as: “he had put his

       penis, I believe, in her monkey and afterwards she felt wet, that he’d be on top

       of her moving up and down.” Id. at 174.


[38]   Deputy Young testified that she was contacted again by someone in J.W.’s

       family and told that J.W. needed to be re-interviewed. By this time, J.W. was

       reportedly saying that she had not told the entire truth before, that is, she had

       not been asleep and the events had started around Easter of 2006. Deputy

       Young related the substance of the second interview:


               [Pierce] asked if she wanted to play a game. [Pierce] asked her if
               she trusted him. If she loved him and loved her mom and she
               said yes and she said that he took his clothes off, then he took her
               clothes off and then he said, they started wrestling around and I
               guess there was a couch that was opened into a bed that they
               were wrestling on and she said he then started fondling her,
               touching her private parts with his hands. She said she asked
               him what he was doing and he didn’t answer. Uh, she said that
               it went on a little bit, then he got up and went in another room
               and then he came back and then when he came back, that he
               started putting his private part on her private part and then she
               said that she felt like he had put his private part in her private
               part and that he moved up and down on top of her.


       Id. at 177. The frequency had been reported as “pretty much every time that

       they were alone and that would normally be on the every other weekend that

       she wasn’t at her father’s.” Id. According to Deputy Young, J.W. had made an

       additional allegation, that is, “Pierce had gave her face” by “put[ting] his

       tongue and his mouth on her private parts.” Id. at 178. As for why these
       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019     Page 29 of 34
       details had not come out in the first interview, Deputy Young said, “I believe it

       was basically she didn’t want to hurt her mom” and “she was scared.” Id.


[39]   Mother then testified. She reiterated that she had told Pierce to “get the hell

       out” for touching J.W. inappropriately. Id. at 201. Mother testified that she

       had learned of the molestation “at the time my mom and dad came up to work

       and called me outside and told me [J.W.] had told her grandfather that [Pierce]

       had touched her and they came and I called her and asked her about it and she

       said at the time she was telling me that he had come into her room at night a

       few times.” Id. at 200. Mother provided details largely consistent with Deputy

       Young’s earlier description:


               [J.W.] told me the first time the details of her story were not true.
               She told me that it was, he didn’t come into her room at night.
               He, while I was at work, he asked her to come into the bedroom
               one day and then asked her if she trusted him of course, she said
               yes. She wouldn’t have any reason not to. Then [they]
               proceeded to take their clothes off and he made it into a game
               that they played and she – the weekends she was home from her
               dads and I was at work. They would play this game and it
               happened for a long time for about a year or more and so I had to
               call the Comfort House and tell them and so she could [go] back
               in and talk to them again.


       Id. at 208. Mother asserted that J.W. “doesn’t make stuff up like that.” Id. at

       210. During cross-examination, Mother conceded that J.W. had “technically

       lied” in the initial recorded statement but clarified “she is not a liar.” Id. at 217.

       On re-direct, Mother made it clear that she “had always believed J.W., from the

       moment she told.” Id. at 225.

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019      Page 30 of 34
[40]   After this group of witnesses, J.W. testified and confirmed many of the

       foregoing details. That is, she testified that Pierce initiated “a game” during

       which they took their clothes off. Id. at 245. The activity ultimately involved

       Pierce putting “his private on her private” and moving up and down and “using

       his mouth on her private” and “moving his tongue.” Id. at 247-49. She had

       fabricated the story of being asleep “because of Mother’s feelings.” Id. at 251.


[41]   The State called Teresa Faulkner, MSW (“Faulkner”) to testify, and explored

       her educational background, employment, and clientele. Faulkner clarified that

       the majority of her clients were “needing to deal with abuse issues.” (Tr. Vol.

       III, pg. 44.) Absent an objection, the record is void of any discussion or context

       within which to evaluate the propriety of Faulkner being called as an expert or

       skilled witness to provide child abuse syndrome evidence.


[42]   The Indiana Supreme Court has found “child abuse syndrome evidence” to be

       inclusive of evidence of “typical” behavior profiles or patterns exhibited by

       victims of child sexual abuse. Steward v. State, 652 N.E.2d 490, 493 (Ind. 1995).

       Because generally accepted research recognizes that child victims may exhibit

       unexpected behavior patterns seemingly inconsistent with a claim of abuse,


               if the defense discusses or presents evidence of such unexpected
               behavior by the child, or if during trial testimony the child
               recants a prior allegation of abuse, a trial court may consider
               permitting expert testimony, if based upon reliable scientific
               principles, regarding the prevalence of the specific unexpected
               behavior within the general class of reported child abuse victims.
               To be admissible, such scientific evidence must assist the finder
               of fact in understanding a child’s responses to abuse and satisfy

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019    Page 31 of 34
               the requirements of both Rule 702(b) and the Rule 403 balancing
               test.


       Id. at 499.


[43]   Here, during the State’s case-in-chief, Faulkner testified without objection

       regarding behaviors typical of abused children, traits of susceptible children, the

       desensitization process, and secrecy agreements. Most relevant here, because

       J.W. had successive interviews with developing detail and had described the

       sexual contact with Pierce as “consensual,” is Faulkner’s explanation of why

       “they don’t tell you everything at first.” (Tr. Vol. III, pg. 48.)


               What the children generally tell me after is that they’re afraid of
               the consequences. They’re not sure what’s going to happen, so it
               comes out in segments. And also it’s a way to not place the
               responsibility on themselves because through the entire grooming
               process, they’re conditioned to feel like it is their fault. …


               They sometimes will block it. They will sometimes minimize
               what has happened. You know, it’s not uncommon to have
               some variations in a story. While the abuse is occurring and
               even thereafter, they’re spending their time trying to block this
               from their mind. So, when it becomes, when its disclosed,
               they’re being asked to recall all this information that they might
               have spent years trying to block. …


               I can’t give you a number, but I would say most every child, one
               of their biggest concerns is, you know, what, what are my parents
               going to think and what is going to happen. … That is the norm
               that they consent. … Well there can be a magnitude of reasons.
               One of the biggest ones is because it’s with a perpetrator who has
               a relationship and a report [sic] with this child and this child has

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019        Page 32 of 34
               developed a trust. They trust this adult and children are taught
               anyway to be very compliant with adults and authority figures, so
               they feel completely powerless to try to stand up to someone
               that’s represented as an authority to them.


       Id. at 48-50.


[44]   Counsel called a sole defense witness, Deputy Young, who was arguably a

       rather unhelpful defense witness, as she provided some additional hearsay details

       after being recalled to the stand. In particular, she testified that Father reported

       to her that J.W. had confirmed “penetration and ejaculation,” (Tr. Vol. III, pg.

       99); J.W. had described Pierce’s penis as “stiff,” id. at 104; and J.W. had

       described the degree of penetration as being “fifty-fifty,” id. at 105.


[45]   I must agree with Pierce that his trial counsel’s performance fell below

       professional norms when she stood idly by while the jury was inundated with

       drumbeat repetition of J.W.’s allegations, even before J.W. testified, and while

       quasi-expert testimony provided explanations for any perceived inconsistencies.

       Moreover, in a case lacking physical evidence, an eyewitness, or other

       corroboration, the crucial determination to be made by the jury was its

       assessment of J.W.’s credibility.


[46]   “Prejudice” in the context of post-conviction proceedings has been specifically

       defined. It exists when a claimant demonstrates that “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 v. Washington,

       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019      Page 33 of 34
       466 U.S. 668, 694 (1984). Here, the onslaught of “vouchsafing” testimony prior

       to J.W.’s testimony eroded Pierce’s presumption of innocence. Then the

       potential harm to Pierce was exacerbated when inconsistencies in J.W.’s out-of-

       court statements were addressed in the context of child abuse syndrome

       evidence. These events sufficiently undermine confidence in the verdict

       rendered. In such a case, we should “view the evidence without inadmissible

       hearsay statements” to assess whether there is a reasonable probability the

       result of trial would have been different. Id. at 689. Excluding hearsay, we are

       left with J.W.’s testimony and a nurse’s testimony that she could not document

       injury. We cannot know to a certainty, or precise mathematical probability,

       what the jury would have done. But as for the burden imposed upon Pierce, I

       am persuaded that he has met his burden by a preponderance and he is entitled

       to post-conviction relief.


[47]   Therefore, I dissent.




       Court of Appeals of Indiana | Opinion 18A-PC-2848 | November 14, 2019   Page 34 of 34
