MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                   FILED
this Memorandum Decision shall not be                                             Dec 05 2017, 8:51 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Otha S. Hamilton                                         Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Otha S. Hamilton,                                        December 5, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1702-PC-279
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Respondent.                                     Judge
                                                         The Honorable Anne Flannelly,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1004-PC-029545



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017         Page 1 of 17
                                       Statement of the Case
[1]   Otha Hamilton appeals from the post-conviction court’s denial of his petition

      for post-conviction relief. Hamilton raises four issues for our review:


              1.      Whether he was denied the effective assistance of trial
                      counsel.

              2.      Whether he was denied the effective assistance of appellate
                      counsel.

              3.      Whether the post-conviction court abused its discretion
                      when it excluded certain evidence.

              4.      Whether the post-conviction court erred when it adopted
                      the State’s proposed findings of fact and conclusions of
                      law.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts underlying Hamilton’s convictions were stated by our Supreme Court

      on direct appeal:


              Forty-four-year-old Otha S. Hamilton resided in Indianapolis
              with his wife, who had twelve grandchildren, none of them by a
              child of Hamilton. Several of the grandchildren would regularly
              visit at any given time, usually on the weekends.

              Sometime between October and December 2009, one grandchild,
              nine-year-old T.M., stayed overnight at her grandmother’s house
              so her grandmother could take her to a dentist appointment the
              next morning. No other grandchildren were present. After
              arriving, T.M. watched television and had dinner that evening.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 2 of 17
        She later went downstairs to the basement to play pool with
        Hamilton, her step-grandfather.

        After T.M.’s grandmother had gone to bed, Hamilton and T.M.
        continued playing pool. Hamilton then told T.M. to smoke a
        cigarette and to drink some of his beer. He then told T.M. to go
        with him upstairs and outside to the unattached garage because
        he had something he wanted to give her.

        In the garage, Hamilton told T.M. to perform oral sex on him.
        At first, T.M. refused, but Hamilton told T.M. that he would hurt
        her grandmother if she did not. (Tr. at 36.) Hamilton pushed
        T.M. to her knees and then pushed her head down. (Tr. at 31-
        32.) Hamilton’s penis was in T.M.’s mouth for about ten
        minutes before he ejaculated, causing T.M. to vomit on the table
        and the floor. (Tr. at 37-38.) T.M. went back inside the house
        and did not tell anyone right away about the incident.

        The incident first came to light about five or six months later.
        The State charged Hamilton with one count of molesting a child,
        as a class A felony. Ind. Code § 35-42-4-3(a) (2008).

                                               ***

        [A jury found Hamilton guilty as charged. The trial court
        imposed judgment of conviction and] imposed the maximum
        sentence of fifty years executed time. As a credit-restricted felon
        assigned to Class IV, Hamilton would therefore have to serve
        roughly forty-three years in prison instead of the customary
        twenty-five. Ind. Code §§ 35-1-1-5.5(1), 35-50-6-3, -4 (2008).

        Hamilton appealed, arguing that the evidence was insufficient to
        support a conviction, and that a sentence of fifty years was
        inappropriate given the nature of his offense and his character.
        The Court of Appeals affirmed the conviction and found that the
        sentence was appropriate, but Judge Brown dissented as to the


Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 3 of 17
              sentence. Hamilton v. State, 949 N.E.2d 885 (Ind. Ct. App. 2011)
              (table).


      Hamilton v. State, 955 N.E.2d 723, 724-25 (Ind. 2011) (“Hamilton I”). On

      transfer, our Supreme Court summarily affirmed our disposition of Hamilton’s

      unsuccessful challenge to the sufficiency of evidence, but the court revised his

      sentence from fifty years to thirty-five years.


[4]   Thereafter, Hamilton filed a petition for post-conviction relief and alleged that

      he was denied the effective assistance of both trial and appellate counsel.

      Following an evidentiary hearing, the post-conviction court entered detailed

      findings of fact and conclusions of law denying his petition for relief. This

      appeal ensued.


                                     Discussion and Decision
[5]   Hamilton appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review is clear:


              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
              (citations omitted). When appealing the denial of post-
              conviction relief, the petitioner stands in the position of one
              appealing from a negative judgment. Id. To prevail on appeal
              from the denial of post-conviction relief, a petitioner must show
              that the evidence as a whole leads unerringly and unmistakably
              to a conclusion opposite that reached by the post-conviction
              court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana Post-

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 4 of 17
              Conviction Rule 1(6). Although we do not defer to the post-
              conviction court’s legal conclusions, “[a] post-conviction court’s
              findings and judgment will be reversed only upon a showing of
              clear error—that which leaves us with a definite and firm
              conviction that a mistake has been made.” Ben-Yisrayl v. State,
              729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).


                              Issue One: Effectiveness of Trial Counsel

[6]   Hamilton first contends that he received ineffective assistance from his trial

      counsel, Ben Jaffe.


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Id. at 274.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 5 of 17
              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) (citations omitted).


[7]   Hamilton alleges that Jaffe committed four errors, namely: he failed to

      investigate Hamilton’s alleged erectile dysfunction; he stipulated to the

      introduction into evidence of T.M.’s videotaped out-of-court statement; he

      failed to impeach T.M.; and he “failed to bring the State’s case to meaningful

      adversarial tests.” Appellant’s Br. at 20. We address each contention in turn.


                                                 Investigation

[8]   Hamilton first contends that Jaffe’s performance was deficient because counsel

      did not investigate Hamilton’s history of erectile dysfunction or obtain medical

      records that, Hamilton alleges, would have shown that he suffers from that

      condition. Hamilton maintains that those medical records would have

      undermined T.M.’s testimony that Hamilton had an erection and had

      ejaculated in her mouth.


[9]   The post-conviction court concluded that Jaffe’s performance “was not

      deficient for using his reasonable professional judgment in deciding that

      obtaining medical records was unnecessary when Hamilton’s wife was going to

      testify to the same information which the medical records would have

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 6 of 17
       provided.” Appellant’s App. Vol. 3 at 12. As the court observed, Jaffe “did

       elicit detailed testimony from [Hamilton’s wife] on this issue” and “argued this

       issue as part of the defense in closing argument.” Id. In any event, Hamilton

       did not submit to the post-conviction court any of his medical records to show

       what an investigation into the records might have uncovered. Indeed, there is

       no evidence that any such medical records exist. Hamilton has not shown

       either deficient performance or prejudice on this issue.


                                               T.M.’s Statement

[10]   Hamilton next contends that Jaffe was “ineffective for stipulating to the State’s

       use of T.M.’s out[-]of[-]court statement” during trial. Appellant’s Br. at 17. He

       maintains that he was unfairly prejudiced by the trial court’s admission of

       T.M.’s out-of-court statement because the statement was “cumulative evidence”

       in light of her in-person testimony during trial. Id. at 16. Hamilton also asserts

       that he was prejudiced because the jury was likely to have viewed the out-of-

       court statement as “substantial evidence” because the trial court did not instruct

       the jury that it should have been “used to judge the witness’s credibility only.”

       Id. at 17.


[11]   The post-conviction court concluded that Jaffe’s decision to stipulate to the

       admission of T.M.’s out-of-court statement constituted reasonable trial strategy.

       Indeed, Jaffe testified at the hearing on Hamilton’s post-conviction petition

       that, “if he [had] decided to play the DVD [of T.M.’s out-of-court statement] for

       impeachment reasons, it would have been because doing so was more forceful

       for the jury to actually see the victim making the inconsistent statement” and he
       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 7 of 17
       “would not have worried if some negative facts were repeated in the process of

       bringing out inconsistencies or a different story being told by the victim because

       the jury ha[d] already heard the bad stuff but what [was] important [was] for

       them to hear the conflicting testimony.” Appellant’s App. Vol. 3 at 14. In

       other words, Jaffe did not merely acquiesce to the use of the videotaped

       statement at trial, but he had a strategy to use the statement to emphasize

       T.M.’s inconsistent statements for the jury. We cannot say that the post-

       conviction court erred when it concluded that Jaffe’s performance was not

       deficient in this regard.


                                                  Impeachment

[12]   Hamilton contends that Jaffe did not make any effort to impeach T.M. In

       particular, he maintains that Jaffe “failed to challenge T.M. with any facts,

       evidence, or testimony.” Appellant’s Br. at 19. We cannot agree. First, Jaffe’s

       cross-examination of T.M. encompasses twenty-four pages of the trial transcript

       and shows that he challenged her on several issues, including why she did not

       tell someone about the molestation sooner than she did. And, second, as the

       post-conviction court noted, Jaffe attacked T.M.’s credibility during his closing

       argument by pointing out the inconsistencies between T.M.’s out-of-court

       statement and her trial testimony. As our Supreme Court has stated, “the

       method of impeaching witnesses is a tactical decision and a matter of trial

       strategy that does not amount to ineffective assistance.” Kubsch v. State, 934

       N.E.2d 1138, 1151 (Ind. 2010). We hold that the post-conviction court did not

       err when it concluded that Jaffe was not ineffective in his impeachment of T.M.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 8 of 17
                                      “Meaningful Adversarial Tests”

[13]   Hamilton next contends that, “in addition to the aforementioned issues, Mr.

       Jaffe has further failed to entirely subject the State’s case to meaningful and

       adversarial testing.” Appellant’s Br. at 20. In support of that contention,

       Hamilton cites United States v. Cronic, 466 U.S. 648 (1984). As our Supreme

       Court explained in Conner v. State, 711 N.E.2d 1238, 1254 (Ind. 1999),


               Cronic established, in effect, a narrow exception to the two-
               pronged Strickland test, which requires defendants to demonstrate
               specific errors of counsel leading to deficient performance and
               actual prejudice in order to obtain reversal on ineffective
               assistance of counsel grounds. In Cronic, the U.S. Supreme Court
               rejected a claim of ineffective assistance of counsel but did
               suggest that, in limited circumstances of extreme magnitude, “a
               presumption of ineffectiveness” may be justified and that such
               circumstances are, in and of themselves, “sufficient [to establish a
               claim of ineffective assistance] without inquiry into counsel’s
               actual performance at trial.” Cronic, 466 U.S. at 662, 104 S. Ct.
               at 2048, 80 L.Ed.2d at 670. If the Cronic exception does not
               apply, the defendant must fulfill the individualized requirements
               of Strickland. See id. at 659 n.26, 104 S. Ct. at 2047 n.26, 80
               L.Ed.2d at 668 n.26.

               The Cronic Court identified three situations that would justify this
               presumption: (1) when counsel is completely denied; (2) when
               counsel entirely fails to subject the prosecution’s case to
               meaningful adversarial testing; and (3) when surrounding
               circumstances are such that, “although counsel is available to
               assist the accused during trial, the likelihood that any lawyer,
               even a fully competent one, could provide effective assistance is
               so small that a presumption of prejudice is appropriate without
               inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.
               Ct. at 2047, 80 L.Ed.2d at 668. The Cronic Court further

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 9 of 17
               explained that “only when surrounding circumstances justify a
               presumption of ineffectiveness can a Sixth Amendment claim be
               sufficient without inquiry into counsel’s actual performance at
               trial.” Id. at 662, 104 S. Ct. at 2048, 80 L.Ed.2d at 670.


       (Emphasis added).


[14]   Hamilton asserts that he is entitled to a presumption that Jaffe was ineffective

       because he “fail[ed] to provide any type of foundation in regards to Hamilton’s

       defense [and] failed to instruct the jury as to the law governing Hamilton’s

       case.” Appellant’s Br. at 20. Hamilton then reiterates his contention that Jaffe

       should not have stipulated to the admission of T.M.’s out-of-court statement.

       And Hamilton states that Jaffe “struggled with the law governing Hamilton’s

       case” and cites two pages in the transcript as proof that the trial court “needed

       to help and assist him” and that Jaffe “admitted on record that he needed to

       review the rules.” Id.


[15]   Hamilton has not demonstrated that these alleged deficiencies warrant the

       application of the Cronic presumption, which, again, is reserved for cases

       involving “limited circumstances of extreme magnitude.” See Conner, 711

       N.E.2d at 1254. We hold that the post-conviction court did not err when it

       concluded that Hamilton was not denied the effective assistance of trial counsel.


                            Issue Two: Effectiveness of Appellate Counsel

[16]   Hamilton also contends that he was denied the effective assistance of appellate

       counsel when his attorney, Mark Small, failed to raise on direct appeal the issue

       of the State’s use of posters during closing argument. In particular, Hamilton

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 10 of 17
       alleges that, during closing argument, the prosecutor showed to the jury “poster

       exhibits” that “contained the Ludy[ v. State, 784 N.E.2d 459 (Ind. 2003)]

       instruction[1] . . . and Appellate Case Cites that supports [sic] that instruction as

       the law in the state of Indiana.” Appellant’s Br. at 10. Hamilton maintains

       that, had Small sought reversal of his conviction based on the “publication” of

       those posters to the jury, we would have reversed Hamilton’s conviction on

       appeal. We cannot agree.


[17]   Our Supreme Court has held that “[i]neffectiveness is very rarely found” where

       a defendant alleges deficient performance based on appellant counsel’s failure

       to raise an issue on direct appeal. Bieghler v. State, 690 N.E.2d 188, 193 (Ind.

       1997) (quotations and alteration omitted).


                One reason for this is that “the decision of what issues to raise is
                one of the most important strategic decisions to be made by
                appellate counsel.” [Lissa Griffin, The Right to Effective
                Assistance of Appellate Counsel, 97 W. Va. L. Rev. 1, 25
                (1994)]. “Experienced advocates since time beyond memory
                have emphasized the importance of winnowing out weaker
                arguments on appeal and focusing on one central issue if
                possible, or at most a few key issues.” Jones v. Barnes, 463 U.S.
                745, 751-52, 103 S. Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). As
                Justice Jackson noted,

                         “Legal contentions, like the currency, depreciate
                         through over-issue. The mind of an appellate judge is



       1
         In Ludy, our Supreme Court held that the trial court erred when it instructed the jury that a conviction
       “may be based solely on the uncorroborated testimony of the alleged victim if such testimony establishes
       each element of any crime charged beyond a reasonable doubt.” 784 N.E.2d at 462.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017           Page 11 of 17
                       habitually receptive to the suggestion that a lower
                       court committed an error. But receptiveness declines
                       as the number of assigned errors increases.
                       Multiplicity hints at lack of confidence in any
                       one. . . . [E]xperience on the bench convinces me
                       that multiplying assignments of error will dilute and
                       weaken a good case and will not save a bad one.”

               Id. at 752, 103 S. Ct. at 3313 (quoting Justice Robert H. Jackson,
               Advocacy Before the United States Supreme Court, 25 Temple
               L.Q. 115, 119 (1951)). Accordingly, when assessing these types
               of ineffectiveness claims, reviewing courts should be particularly
               deferential to counsel’s strategic decision to exclude certain issues
               in favor of others, unless such a decision was unquestionably
               unreasonable. See Smith v. Murray, 477 U.S. 527, 535-36, 106 S.
               Ct. 2661, 2667, 91 L.Ed.2d 434 (1986).


       Id. at 193-94 (emphasis added).


[18]   Here, the post-conviction court found and concluded in relevant part as follows:


               Firstly, this Court notes that Mr. Jaffe voiced a preliminary
               objection only, prior to the commencement of closing arguments
               and outside the presence of the jury, regarding a poster with
               “a bunch of cases” on it which the State was possibly going to
               show in its closing argument. See [Tr. at] 263. According to the
               transcript, the State then showed the poster to the judge, and
               both sides presented argument with the State acknowledging that
               an instruction regarding the uncorroborated testimony of a single
               eyewitness could not be given anymore. See [id. at] 263-65. In
               refusing Mr. Jaffe’s request to prohibit the State’s use of the
               poster in its closing argument, the trial court stated:

                       Well, while I understand your objection to the use of
                       that, you know, both parties are equally allowed to
                       explain the law, talk about the law, discuss the law
       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 12 of 17
                and I wouldn’t abridge that. I understand your
                objection to it but you very clearly and succinctly
                articulated why . . . the effect of those should be
                mitigated so, I think you’re well able to do it in your
                argument too. . . . So, while I know the State has a
                choice of when to do it, if that’s a new thing that
                comes up in closing as opposed to summation, it
                could trigger surrebuttal, just— okay, just having said
                that. All right. Are we ready for the jurors?

        [Id. at] 265. Thus, the trial court did, in substance, rule on Mr.
        Jaffe’s preliminary objection.

        Thereafter, the record further shows that in the State’s rebuttal
        closing, the prosecutor mentioned “a list of cases when a child
        came into court and testified and a jury believed that child and
        the Defendant was convicted and that law was upheld.” [Tr. at]
        299. In this argument[,] which comprised a relatively small
        portion of the State’s closing, the deputy prosecutor also stated,
        “This standard does not tell you, oh, you have a child victim and
        you have to convict. That’s not what it does. It tells you that
        when you go back to deliberate, if you’re sitting there going, well,
        I believe her, that’s enough.” Id. The record reflects no objection
        by trial counsel to this line of argument during the State’s closing,
        and the record of proceedings includes no list of cases or
        photograph of any demonstrative exhibit listing cases.

        Appellate counsel will not be deemed ineffective for failing to
        present meritless claims. Vaughn v. State, 559 N.E.2d 610, 615
        (Ind. 1990)), trans. denied. Firstly, the court did rule on trial
        counsel’s preliminary objection to the State’s poster, see [tr. at]
        265; therefore, raising on appeal that the court erred by failing to
        rule on Mr. Jaffe’s objection would have been without merit.
        Secondly, there is no exhibit listing cases, or photograph of such
        an exhibit, in the record of proceedings; therefore, petitioner has
        not proven this was a significant and obvious issue or that such
        an issue had any chance of success on appeal given that the it is
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 13 of 17
               not clear from the record whether such a demonstrative exhibit
               was actually shown to the jury or, if it was, what was written on
               the exhibit. Given the wording of the State’s rebuttal at [page]
               299[ of the transcript], it is possible that the deputy prosecutor
               had a list in her hand but did not show it to the jury. Thirdly,
               given that there was no contemporaneous objection . . . , Mr.
               Small could only have challenged the State’s argument as
               fundamental error. “The fundamental error exception to the
               waiver rule is an extremely narrow one.” Munford v. State, 923
               N.E.2d 11, 13 (Ind. Ct. App. 2010). The Indiana Supreme Court
               has repeatedly stated that, for a mistake to constitute
               fundamental error, it must be so prejudicial to the rights of a
               defendant as to make a fair trial impossible. See Winegeart v.
               State, 665 N.E.2d 893, 896 (Ind. 1996). Mr. Small found nothing
               in the State’s closing argument . . . to be objectionable or in
               violation of Ludy.[]

               Mr. Small’s performance was not deficient, as it was not
               unquestionably unreasonable for him to not include such a claim.
               Nor was Hamilton prejudiced by appellate counsel’s decision not
               to challenge the trial court’s ruling on the preliminary objection
               and/or to challenge the State’s closing argument at [page] 299[ of
               the transcript]. Mr. Small selected worthwhile claims on appeal
               and pursued transfer which resulted in Hamilton’s fifty-year
               sentence being reduced to thirty-five years. Petitioner’s claim of
               ineffective assistance of appellate counsel fails.


       Appellant’s App. Vol. 3 at 17-19.


[19]   On appeal, Hamilton does not direct us to any part of the record to contradict

       the post-conviction court’s conclusion that the trial record does not contain

       proof that the State “published” posters related to the forbidden Ludy

       instruction during closing argument. And Hamilton has not demonstrated that

       Small would have been successful had he argued fundamental error on this

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 14 of 17
       issue. We cannot say that Small’s strategic choice of issues to raise on direct

       appeal was “unquestionably unreasonable.” See Bieghler, 690 N.E.2d at 194.

       The post-conviction court’s reasoning is sound, and we hold that the post-

       conviction court did not err when it concluded that Hamilton was not denied

       the effective assistance of appellate counsel.


                                     Issue Three: Abuse of Discretion

[20]   Hamilton contends that the post-conviction court abused its discretion when it

       excluded from evidence at the hearing on his petition an interrogatory response

       submitted by T.M.’s grandmother (“Grandmother”). In particular, Hamilton

       maintains that the excluded evidence showed that Grandmother “believed that

       Hamilton’s sentence should be vacated because T.M. . . . was less than truthful

       when she testified at Hamilton’s trial.” Appellant’s Br. at 26. Hamilton asserts

       that Grandmother’s interrogatory response contains this “newly found truth”2

       and “go[es] toward the weight of Hamilton’s claim that trial counsel was less

       than effective in representing him.” Id. at 27. We cannot agree.


[21]   We review the post-conviction court’s decision to admit or exclude evidence for

       an abuse of discretion. See Rondon v. State, 711 N.E.2d 506, 516 (Ind. 1999).

       We agree with the State that Grandmother’s opinion of T.M.’s truthfulness is

       irrelevant to Hamilton’s claims in his petition for post-conviction relief. On




       2
         Hamilton makes no contention that this evidence constitutes “newly discovered evidence” to warrant a
       new trial. See Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017       Page 15 of 17
       appeal, Hamilton makes only a vague assertion that the evidence would have

       helped his claim of ineffective assistance of trial counsel. As the State correctly

       points out, Jaffe would have been prohibited from eliciting such testimony from

       Grandmother at trial because a witness may not testify to “the truth or falsity of

       allegations” or “whether a witness has testified truthfully[.]” Ind. Evidence

       Rule 704(b). And Hamilton has not explained how the evidence would have

       otherwise supported his claim of ineffective assistance of trial counsel. We

       cannot say that the post-conviction court abused its discretion when it excluded

       the proffered evidence at the post-conviction hearing.


                                 Issue Four: Findings and Conclusions

[22]   Finally, Hamilton contends that the post-conviction court erred when it

       adopted, “virtually verbatim,” the State’s proposed findings of fact and

       conclusions of law. Appellant’s Br. at 28. In essence, Hamilton asserts that the

       post-conviction court did not have sufficient time to review his “response” to

       the State’s proposed findings of fact and conclusions of law, which was filed the

       same day that the court issued its order. Hamilton maintains that, if the post-

       conviction court had “reviewed” and “considered” his proposed findings of fact

       and conclusions of law, the court would have granted his petition. Id. at 29.

       We cannot agree.


[23]   As our Supreme Court has observed, “[i]t is not uncommon for a trial court to

       enter findings that are verbatim reproductions of submissions by the prevailing

       party.” Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001). And Indiana courts

       are not prohibited from this practice. See id. at 709. Here, to the extent
       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 16 of 17
       Hamilton asserts that the post-conviction court was required to review and

       consider his proposed findings of fact and conclusions of law, he does not

       support that contention with citation to authority. Moreover, to the extent

       Hamilton contends that, had the post-conviction court taken more time to

       consider his proposed order it would have granted his petition, that contention

       is without merit. The post-conviction court’s findings of fact are supported by

       the evidence, and the findings support the conclusions of law. Hamilton has

       not demonstrated error on this issue.


[24]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-PC-279 | December 5, 2017   Page 17 of 17
