MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Aug 30 2018, 7:29 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cynthia P. Helfrich                                      Curtis T. Hill, Jr.
Helfrich & Harrell, LLC                                  Attorney General of Indiana
Avon, Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan P. Ballard,                                         August 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1704-PC-762
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Robert W. Freese,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         32D01-1606-PC-5
                                                         32D01-1208-FA-18



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018         Page 1 of 18
                                            Statement of the Case
[1]   After being convicted of two counts of Class A felony child molesting1 and two

      counts of Class C felony child molesting,2 Ryan P. Ballard (“Ballard”), filed a

      motion to correct error, raising a claim of newly discovered evidence. The trial

      court held a hearing and denied his motion. Ballard then started a direct appeal

      but suspended it, pursuant to the Davis/Hatton procedure,3 and filed a petition

      for post-conviction relief. In his post-conviction petition, he raised a claim of

      ineffective assistance of trial counsel and reprised his newly discovered evidence

      argument. The post-conviction court denied post-conviction relief, finding that

      trial counsel’s performance was not deficient and pointing out that Ballard had

      already raised and had had a determination on his newly discovered evidence

      claim.


[2]   Ballard now raises one direct appeal issue and one post-conviction appeal issue.

      Specifically, he argues that: (1) the trial court erred by denying his motion to




      1
          IND. CODE § 35-42-4-3(a).
      2
          I.C. § 35-42-4-3(b).
      3
          As our Court has explained:

                 The Davis-Hatton procedure results in the termination or suspension of an already initiated
                 direct appeal to allow the appellant to pursue a petition for post-conviction relief. Where,
                 as here, the petition for post-conviction relief is denied, the direct appeal may be
                 reinstated. This procedure permits an appellant to simultaneously raise his direct-appeal
                 issues as well as issues on appeal from the denial of his petition for post-conviction
                 relief. In other words, the direct appeal and the appeal of the denial of post-conviction
                 relief are consolidated.
      Hinkle v. State, 97 N.E.3d 654, 658 n.1(Ind. Ct. App. 2018) (internal citations and quotation marks omitted).



      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018                Page 2 of 18
      correct error regarding newly discovered evidence; and (2) the post-conviction

      court erred by denying his petition for post-conviction relief on his ineffective

      assistance of trial counsel claim. Concluding that Ballard has failed to meet his

      burden of showing that: (1) the trial court abused its discretion by denying his

      motion to correct error; and (2) the post-conviction court erred by denying post-

      conviction relief, we affirm the challenged judgments.


[3]   We affirm.


                                                     Issues
              1. Whether the trial court abused its discretion by denying
              Ballard’s motion to correct error regarding his claim of newly
              discovered evidence.

              2. Whether the post-conviction court erred by denying post-
              conviction relief on Ballard’s claim of ineffective assistance of trial
              counsel.
                                                     Facts
[4]   In early August 2012, Ballard, who was then thirty-two years old,

      inappropriately touched his then eight-year-old daughter, T.B. (“T.B.”).

      Specifically, Ballard licked and touched T.B.’s genitals, forced her to put her

      mouth on his penis, and licked her breasts. At that time, Ballard and T.B.’s

      mother (“T.B.’s mother) were married to other people, and T.B. lived with

      Ballard.


[5]   Several days later, on August 10, 2012, when T.B. was visiting her mother, the

      babysitter noticed that T.B. was masturbating. When questioned by the

      babysitter, T.B. told her that Ballard had taught her how to masturbate. T.B.,

      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 3 of 18
      who was crying and appeared scared, also disclosed that Ballard had molested

      her on several occasions. When T.B.’s mother returned from work, T.B. told

      her mother what Ballard had done, and T.B.’s mother called the police.


[6]   The State charged Ballard with three counts of Class A felony child molesting

      and three counts of Class C felony child molesting. The trial court held three

      jury trials, and attorney Ralph Staples (“Attorney Staples”) represented Ballard

      at all three trials. The first jury trial, held in August 2014, ended in a mistrial

      based on the delayed disclosure of evidence. The second trial was held in

      December 2014. When testifying on his own behalf, Ballard denied that he had

      molested T.B. and suggested that she had been coached to say that he had

      molested her. The second trial ended in a mistrial after the jury was unable to

      render a unanimous verdict.


[7]   The third jury trial was held on June 22-24, 2015. At that time, there were five

      counts pending against Ballard: three counts of Class A felony child molesting

      and two counts of Class C felony child molesting.4 At the time of this third

      trial, T.B. was eleven years old. She testified about how Ballard had molested

      her on various occasions and how he had made her masturbate. The State also

      called T.B.’s mother and babysitter as witnesses, both of whom testified about

      how and when T.B. disclosed that Ballard had molested her.




      4
          The State had previously dismissed Count 4 prior to the first trial.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 4 of 18
[8]   Among the State’s other witnesses were Dr. Jane Yip (“Dr. Yip”), who is a

      neuroscientist who did some testing with T.B., and Dr. Patricia Smallwood

      (“Dr. Smallwood”), who is a family therapist who never met with T.B. Dr. Yip

      testified about “brain mapping,” which she described as a method of looking at

      the electrical activity produced by the activation of neurons in a person’s brain

      and then comparing that brain activity to a “normative data base.” (Trial Tr.

      Vol. 4 at 91, 92). She explained that the electrical activity was captured by

      using a “qualitative EEG” or “QEEG” that involved placing a cap with

      electrodes on a person’s head and scalp. (Trial Tr. Vol. 4 at 91). Dr. Yip

      testified that she had performed the brain mapping or QEEG testing on T.B. in

      April 2015. She also testified that the testing showed, in part, that the speed of

      connectivity in the emotional center of T.B.’s brain was affected and that this

      result suggested that T.B. had “possible trauma, ongoing trauma.” (Trial Tr.

      Vol. 4 at 94). Attorney Staples did not object to Dr. Yip’s testimony, but he

      cross-examined Dr. Yip about her testing procedures and results. During cross-

      examination, Attorney Staples got Dr. Yip to admit that the affected brain

      activity that she saw in T.B.’s emotional center could have been attributed to

      other sources besides trauma. Additionally, Attorney Staples established that

      Dr. Yip did not know what had happened in T.B.’s life between the time of the

      alleged offenses in 2012 and the time that Dr. Yip tested T.B. in 2015.


[9]   The State called Dr. Smallwood as an expert witness to testify about her general

      experience and training from when she worked as the director of victims’

      assistance for various law enforcement agencies. The State asked Dr.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 5 of 18
       Smallwood about the indicators that would show that a child had been

       coached, the likelihood that charges would be filed where coaching was

       suspected, the frequency of sexual abuse occurring as a one-time incident, and

       patterns for children’s disclosure of abuse. The State also asked Dr. Smallwood

       whether a child victim of sexual abuse would experience trauma by having to

       testify in court. Attorney Staples repeatedly objected, based on relevancy, to

       the State’s direct examination questions. Attorney Staples also cross-examined

       Dr. Smallwood to establish that she did not have firsthand knowledge of any of

       the allegations against Ballard.


[10]   After the State rested, Ballard moved for directed verdict on the Class A felony

       in Count 3. The State agreed and moved to dismiss Count 3. Thereafter,

       Ballard presented his own witnesses and testified on his own behalf.5 The jury

       found Ballard guilty of the four remaining charges.


[11]   Almost two months after trial and just a few days prior to a scheduled

       sentencing hearing, Ballard filed a Trial Rule 59 motion to correct error.

       Ballard essentially asserted that he had newly discovered evidence. He declared

       that he had recently learned that T.B.’s mother had criminal charges filed

       against her and that a child in need of services (“CHINS”) proceeding had been

       initiated against T.B.’s mother by the Department of Child Services (“DCS”).




       5
         The transcript contained in the record on appeal does not contain the transcription of the last day of the
       third jury trial, which would have included Ballard’s testimony, closing arguments, and the jury’s verdict.
       While the lack of a full transcript is not ideal, our review of the specific issues raised in this appeal is,
       nevertheless, still possible.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018               Page 6 of 18
       Ballard attached a copy of the DCS preliminary report, which indicated that

       T.B.’s mother had asked T.B. to lie to DCS about mother’s drug use and that

       T.B. had initially done so because she was afraid. T.B. then admitted to DCS

       that she knew that her mother used drugs. Ballard suggested that this recently

       learned information could potentially “lead to the conclusion” that the State

       had unintentionally presented testimony that was “perjured” or “based on

       significant mistakes of fact[.]” (App. Vol. 2 at 45, 46) (italics removed). Ballard

       alleged that, based on this newly discovered evidence, the reliability of the

       jury’s verdict could “reasonably be called into question[.]” (App. Vol. 2 at 46).

       Ballard’s motion did not mention or address the nine factors necessary for

       obtaining a new trial based on a claim of newly discovered evidence.


[12]   The State filed an objection to Ballard’s motion to correct error, noting that the

       allegations about T.B.’s mother had occurred more than one month after

       Ballard’s trial. Thus, the State argued that there was no connection or

       relevance between the allegations and Ballard’s child molesting convictions.

       The trial court held a hearing on Ballard’s motion to correct error and heard

       testimony during this hearing. 6 Thereafter, the trial court denied Ballard’s

       motion to correct error.


[13]   Subsequently, the trial court held a sentencing hearing and imposed a thirty-six

       (36) year sentence for each of Ballard’s Class A felony convictions and a six (6)




       6
         The transcript of the motion to correct error hearing is not in the record on appeal because Ballard did not
       request that it be transcribed when he filed his notice of appeal.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018              Page 7 of 18
       year sentence for each of his Class C felony convictions, and it ordered those

       sentences to be served concurrently in the Indiana Department of Correction.

       Ballard then filed his notice of appeal and commenced a direct appeal. While

       the appeal was pending, Ballard filed a Davis/Hatton petition, seeking to stay his

       appeal and to file a petition for post-conviction relief. Our Court granted his

       request to utilize the Davis/Hatton procedure.


[14]   Thereafter, Ballard filed a post-conviction petition, raising claims of: (1) newly

       discovered evidence based on the same argument he had raised in his motion to

       correct error; and (2) ineffective assistance of trial counsel based on counsel’s

       failure to object, based on improper vouching under Indiana Evidence Rule

       704(b), to the testimony of Dr. Smallwood and Dr. Yip. In regard to Dr.

       Smallwood, Ballard acknowledged that his trial counsel had objected to Dr.

       Smallwood’s testimony, but he stated that he was not aware as to the basis of

       counsel’s objection because the sidebar conference discussing the objection had

       not been included in the trial transcript.


[15]   In the State’s response to Ballard’s post-conviction petition, it argued that

       Ballard’s post-conviction claim regarding newly discovered evidence should be

       barred by the doctrine of res judicata because it was the same argument

       previously set out in his motion to correct error and denied by the trial court.

       Alternatively, the State argued that Ballard was not entitled to relief on this

       claim because he could not demonstrate the required nine factors for obtaining

       a new trial based on newly discovered evidence. The State also argued that

       Ballard had not been denied the effective assistance of trial counsel.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 8 of 18
[16]   The post-conviction court held a hearing in January 2017. During the hearing,

       Ballard, who was represented by counsel, called several witnesses, including

       Attorney Staples, Dr. Smallwood, Dr. Yip, and the DCS case manager who

       was involved in T.B.’s CHINS case that occurred after Ballard’s third trial.


[17]   At the beginning of the hearing, Ballard argued that the newly discovered

       evidence was that, at the time of the third trial, the State was aware of but did

       not disclose the DCS investigation into T.B.’s mother’s drug abuse and T.B.’s

       mother’s request for T.B. to lie about that drug use. In regard to the ineffective

       assistance of trial counsel claim, Ballard told the post-conviction court that he

       was changing the basis of his claim from what was asserted in his post-

       conviction petition. Specifically, he stated that he wanted to argue that trial

       counsel had rendered ineffective assistance when he failed to object to the

       testimony of Dr. Smallwood and Dr. Yip based on Evidence Rule 702 (expert

       testimony) and not Rule 704 (vouching) as argued in his post-conviction

       petition.7


[18]   When responding to Ballard’s newly discovered evidence claim, the State

       pointed out that: (1) the evidence that Ballard had referenced occurred after the

       completion of the trial and was not known at the time of trial; and (2) Ballard

       had already made the same argument in his motion to correct error. As for the

       ineffective assistance of counsel claim, the State first objected to Ballard’s




       7
        Ballard conceded that, under the case law, there was no improper vouching or ineffective performance
       under Evidence Rule 704.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018         Page 9 of 18
       attempt to change the theory of his ineffective assistance of counsel claim to

       Evidence Rule 702; however, later, in a conference held off the record, the State

       indicated that it would withdraw its objection.


[19]   When Ballard questioned Attorney Staples about why he did not object to Dr.

       Smallwood’s and Dr. Yip’s testimonies, Attorney Staples testified that it was

       part of his trial strategy. He explained that the theory of defense was that the

       State could not prove its case beyond a reasonable doubt, and he stated that his

       “position [was] that [Ballard’s] case rose and sank on the testimony of [T.B.].”

       (Post-Conviction Tr. Vol. 2 at 39). Attorney Staples testified that the case

       boiled down to “he said, she said” and whether the jury would believe the

       testimony of T.B. or Ballard. (Post-Conviction Tr. Vol. 2 at 40). Additionally,

       Attorney Staples explained that his strategy for handling Dr. Smallwood’s

       testimony was to cross-examine her to show that she had not been an

       eyewitness to the allegations and that his strategy for handling Dr. Yip’s

       testimony was “to argue to the jury that [her brain mapping testing] was junk

       science.” (Post-Conviction Tr. Vol. 2 at 38).


[20]   Following the hearing, the post-conviction court issued an order denying

       Ballard’s petition for post-conviction relief. In regard to Ballard’s claim of

       newly discovered evidence, the post-conviction court noted that: (1) Ballard’s

       new evidence (that T.B.’s mother was being investigated by DCS for her drug

       use and that T.B. had initially lied to a DCS worker about her mother’s drug

       use) had occurred after the completion of his third trial; and (2) Ballard had

       already raised this claim in his motion to correct error, which had been denied

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 10 of 18
       by the trial court. Nevertheless, the post-conviction court discussed the nine

       factors necessary for succeeding on a claim of newly discovered evidence and

       determined that Ballard had failed to show all nine required factors.

       Specifically, the post-conviction court found that Ballard had failed to

       demonstrate that the new evidence was: (1) material and relevant; (2) not

       merely impeaching; and (3) would probably have resulted in an acquittal in a

       retrial. In regard to Ballard’s ineffective assistance of counsel claim, the post-

       conviction court found that Attorney Staples had “vigorously represented”

       Ballard during his three jury trials and determined that counsel’s lack of

       objection to the testimony of the two doctors was trial strategy and did not

       equate to deficient performance. (App. Vol. 2 at 161). Ballard now appeals.


                                                   Decision
[21]   Ballard appeals: (1) the trial court’s denial of his motion to correct error as a

       direct appeal issue; and (2) the post-conviction court’s order denying post-

       conviction relief on his claim of ineffective assistance of trial counsel. We will

       address each argument in turn.


       1. Direct Appeal Issue – Motion to Correct Error


[22]   Ballard raises one direct appeal issue; specifically, he challenges the trial court’s

       denial of his motion to correct error, which was based on the implication that

       he had newly discovered evidence. Although the State addressed Ballard’s

       challenge to his claim of newly discovered evidence as a post-conviction issue,

       we note that Ballard is appealing his challenge to his claim of newly discovered

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 11 of 18
       evidence as a direct appeal issue. Therefore, we will review the issue regarding

       the trial court’s denial of his motion to correct error and apply the

       corresponding standard of review.8


[23]   We review a trial court’s ruling on a motion to correct error for an abuse of

       discretion. State v. Gonzalez-Vasquez, 984 N.E.2d 704, 706 (Ind. Ct. App. 2013),

       trans. denied. We will reverse a trial court’s ruling on a motion to correct error

       “only where the trial court’s judgment is clearly against the logic and effect of

       the facts and circumstances before it or where the trial court errs on a matter of

       law.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).


[24]   Newly discovered evidence requires a new trial only when the defendant

       demonstrates that: “(1) the evidence has been discovered since trial; (2) it is

       material and relevant; (3) it is not cumulative; (4) it is not merely impeaching;

       (5) it is not privileged or incompetent; (6) due diligence was used to discover it

       in time for trial; (7) it is worthy of credit; (8) it can be produced upon a retrial of

       the case; and (9) it will probably produce a different result at retrial.” Carter v.

       State, 738 N.E.2d 665, 671 (Ind. 2000). Our Court “analyzes these nine factors

       with care, as the basis for newly discovered evidence should be received with




       8
         Again, we note that Ballard did not request transcription of the hearing on his motion to correct error.
       Additionally, we note that Ballard filed his motion to correct error more than one month after the completion
       of his third trial and prior to his sentencing hearing. A motion to correct error is to be filed “within thirty (30)
       days of final judgment[,]” Ind. Trial Rule 59, or “within thirty (30) days after the date of sentencing.” Ind.
       Crim. Rule 16(B). Thus, it appears that his motion was premature because the trial court had not yet entered
       a sentence or “final judgment.” See Hopkins v. State, 420 N.E.2d 895, 896 (Ind. Ct. App. 1981) (explaining
       that, in a criminal case, a sentence is a final judgment). We will review his argument despite this procedural
       irregularity.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018                Page 12 of 18
       great caution and the alleged new evidence carefully scrutinized.” Taylor v.

       State, 840 N.E.2d 324, 330 (Ind. 2006) (internal quotation marks and citations

       omitted). The defendant has the burden of showing that all nine requirements

       are met. Id.


[25]   The crux of Ballard’s argument is that he should get a new trial based on the

       evidence that: (1) DCS conducted an investigation into T.B.’s mother’s drug

       use that led to the removal of T.B. from her house and drug charges against

       mother; and (2) the DCS investigation revealed that T.B.’s mother had asked

       T.B. to lie to DCS about mother’s drug use. Ballard suggests that this evidence

       would be material and relevant because it could be used to “cross-examine or

       impeach” the testimony of T.B. and T.B.’s mother. (Ballard’s Br. 14). He also

       suggests that the evidence could have been used to cross-examine Dr. Yip and

       that it could have affected the trial court’s pre-trial ruling on the admission of

       T.B.’s statements.


[26]   The record shows that the newly discovered evidence—the DCS investigation

       into T.B.’s mother’s drug use and T.B.’s mother’s request for T.B. to lie about

       her drug use—occurred at the end of July 2015, which was one month after the

       completion of Ballard’s trial and more than three years after the crimes had

       occurred. Ballard cannot show that the new evidence was relevant or material

       to his child molesting charges or whether he molested T.B. three years prior.

       Additionally, as evident from his argument, he seeks to use the new evidence to

       merely impeach the credibility of witnesses, which does not support the

       granting of a new trial. See Carter, 738 N.E.2d at 671. Because Ballard has

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 13 of 18
       failed to demonstrate all nine factors necessary for obtaining a new trial based

       on newly discovered evidence, the trial court did not abuse its discretion by

       denying his motion to correct error.


       2. Post-Conviction Issue – Ineffective Assistance of Trial Counsel


[27]   As part of Ballard’s appeal of the post-conviction court’s order, he contends that

       the post-conviction court erred by denying him relief on his claim of ineffective

       assistance of trial counsel. Our standard of review in post-conviction

       proceedings is well settled.


               We observe that post-conviction proceedings do not grant a
               petitioner a “super-appeal” but are limited to those issues
               available under the Indiana Post-Conviction Rules. Post-
               conviction proceedings are civil in nature, and petitioners bear
               the burden of proving their grounds for relief by a preponderance
               of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
               who appeals the denial of PCR faces a rigorous standard of
               review, as the reviewing court may consider only the evidence
               and the reasonable inferences supporting the judgment of the
               post-conviction court. The appellate court must accept the post-
               conviction court’s findings of fact and may reverse only if the
               findings are clearly erroneous. If a PCR petitioner was denied
               relief, he or she must show that the evidence as a whole leads
               unerringly and unmistakably to an opposite conclusion than that
               reached by the post-conviction court.

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal case

       citations omitted), trans. denied. Additionally, “[w]e will not reweigh the

       evidence or judge the credibility of the witnesses; we examine only the

       probative evidence and reasonable inferences that support the decision of the


       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 14 of 18
       post-conviction court.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),

       reh’g denied, cert. denied.


[28]   Ballard argues that his trial counsel had rendered ineffective assistance when he

       failed to object, based on Evidence Rule 702, to the testimony of Dr.

       Smallwood and Dr. Yip. A petitioner alleging a claim of ineffective assistance

       of counsel is required to show that: (1) counsel’s performance was deficient by

       falling below an objective standard of reasonableness based on prevailing

       professional norms; and (2) counsel’s performance prejudiced the defendant

       such that “‘there is a reasonable probability that, but for counsel’s

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

       Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v.

       Washington, 466 U.S. 668, 687 (1984), reh’g denied), reh’g denied, cert. denied. “A

       reasonable probability arises when there is a ‘probability sufficient to undermine

       confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

       prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

       Ct. App. 2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans.

       denied.


[29]   Before we address Ballard’s argument, we note that the judge who presided

       over Ballard’s jury trial is also the judge who presided over the post-conviction

       proceedings. “[I]n such a case, the judge is uniquely situated to assess whether

       trial counsel’s performance fell below an objective standard of reasonableness

       and whether, but for counsel’s unprofessional conduct, there was a reasonable

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 15 of 18
       probability that a different verdict would have been reached.” Hinesley v. State,

       999 N.E.2d 975, 982 (Ind. Ct. App. 2013), reh’g denied, trans. denied.

       Accordingly, the post-conviction court’s findings and judgment are “entitled to

       ‘greater than usual deference.’” Id. (quoting McCullough v. State, 973 N.E.2d 62,

       75 (Ind. Ct. App. 2012), trans. denied). See also State v. Dye, 784 N.E.2d 469, 476

       (Ind. 2003) (noting that because the same judge presided at both the original

       trial and post-conviction hearing, the judge was in “an exceptional position” to

       assess weight and credibility of the factual evidence and whether the defendant

       was deprived of a fair trial).


[30]   When reviewing a claim that counsel’s performance was deficient, we consider

       the following:


               There is a strong presumption that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. Counsel is afforded
               considerable discretion in choosing strategy and tactics, and these
               decisions are entitled to deferential review. Isolated mistakes,
               poor strategy, inexperience, and instances of bad judgment do
               not necessarily render representation ineffective.

       Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (internal citations omitted),

       reh’g denied, cert. denied. “Few points of law are as clearly established as the

       principle that ‘[t]actical or strategic decisions will not support a claim of

       ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)

       (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)), reh’g denied.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 16 of 18
[31]   Here, the post-conviction court made the following findings regarding Ballard’s

       claim alleging that trial counsel had rendered deficient performance by not

       raising an Evidence Rule 702 objection to the testimony of Drs. Smallwood and

       Yip:


               4. It is not up to the Court to decide whether the testimony of
               Smallwood and Yip was a violation of the rules of evidence.
               Instead, it is up to this Court to determine whether [Attorney]
               Staples was ineffective in failing to object to their testimony. At
               the PCR hearing, [Ballard’s] trial counsel (Staples) stated his
               theory that [Ballard’s] case was a “he said-she said”. His belief
               was that the testimony of Smallwood and Yip would be weak
               and unpersuasive, and that the jury[’s] decision would turn on
               who they believed: [Ballard] or the victim. He described his
               decision to not object as trial strategy, and this Court so finds.
               The Indiana Supreme Court has held that “isolated omissions,
               errors, poor strategy, or bad tactics are not themselves evidence
               of deficient performance.” Brown v. State, 691 N.E.2d 438, 446
               (Ind. 1998).

               5. Additionally deficient performance is defined as performance
               outside an objective standard of reasonableness. Id. [Attorney]
               Staples . . . vigorously represented [Ballard] during three jury
               trials. He filed numerous pleadings with the court on [Ballard’s]
               behalf. He requested and argued for bond reduction, engaged in
               discovery including three depositions, cross-examined witnesses,
               and made numerous objections – some of which were sustained –
               throughout the trials. This Court finds that his performance was
               well within the objective standards of reasonableness we require
               and expect of defense counsels.


       (App. Vol. 2 at 161).




       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 17 of 18
[32]   Here, the post-conviction court determined that Ballard had failed to show that

       counsel’s representation fell below an objective standard of reasonableness

       where the evidence showed that Attorney Staples made a strategic decision

       regarding his handling of the testimony of the two doctors. On appeal, Ballard

       has failed to show that the evidence as a whole leads unerringly and

       unmistakably to an opposite conclusion than that reached by the post-

       conviction court. Accordingly, we affirm the post-conviction’s judgment. See

       McCary, 761 N.E.2d at 392 (explaining that strategic decisions will not support

       a claim of ineffective assistance of counsel).


[33]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-PC-762 | August 30, 2018   Page 18 of 18
