Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                          Oct 24 2014, 9:51 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

F. THOMAS SCHORNHORST                           GREGORY F. ZOELLER
Oxford, Mississippi                             Attorney General of Indiana

                                                HENRY A. FLORES
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL C. WILSON,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1401-PC-49
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Lisa F. Borges, Judge
                           Cause No. 49G04-0704-PC-57737


                                     October 24, 2014

             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                        Case Summary and Issue

        A jury found Michael Wilson guilty of murder in 2008. He was ordered to serve a

sixty-year sentence, with fifteen years suspended subject to five years of probation.

Wilson sought post-conviction relief, alleging ineffective assistance of his trial counsel.

Following a hearing, the post-conviction court denied Wilson’s petition for relief.

Wilson now appeals, raising the sole issue of whether the post-conviction court erred in

finding Wilson was not deprived of the effective assistance of counsel at his trial.

Concluding none of the errors alleged by Wilson amount to ineffective assistance of

counsel, alone or cumulatively, we affirm.

                                     Facts and Procedural History1

        The relevant facts were set forth by this court in a memorandum decision on direct

appeal:

                The facts most favorable to the verdict reveal that thirty-two-year-
        old Wilson and thirty-three-year-old Nupur Srivastava met at a drug and
        alcohol rehabilitation center in New York in November 2006. After Nupur
        was discharged from the center, she joined Wilson at his father’s home in
        Indianapolis in January 2007, and later rented an apartment on the north
        side of town. In early April 2007, while Nupur was visiting her family in
        Maryland, her parents convinced her she needed to return to the
        rehabilitation center. Nupur briefly returned to Indianapolis to retrieve her
        belongings. The day before she was scheduled to leave Indianapolis,
        Nupur and Wilson were drinking whiskey and arguing on Wilson’s father’s
        patio when Wilson splashed Nupur with gasoline and set her on fire.
                Nupur ran through Wilson’s father’s house to the bathroom where
        she filled up the bathtub and jumped into it to put out the flames. While
        she was in the bathtub, Wilson called 911 to report a fire. During the phone
        call, Nupur asked Wilson why he had done that. Wilson responded, “I
        didn’t think it was going to be like that, I swear.”
        1
           We heard oral argument at Frankfort High School in Frankfort, Indiana, on October 7, 2014. We extend
our appreciation to the Clinton County bench and bar, Frankfort High School faculty and staff, and students from
area schools who collectively made the argument a success. We also commend counsel for their presentations.

                                                       2
                 When paramedics arrived at the scene, Nupur walked unassisted out
         of the garage. Paramedic Jeff Brown ran to Nupur and escorted her to an
         ambulance. When Brown asked Nupur what had happened, she told the
         paramedic that Wilson had poured gas on her and set her on fire. Brown
         placed Nupur in the ambulance and turned to see a naked Wilson standing
         in the yard. Wilson had burns on his hands and portions of his forearms.
         Wilson told the paramedic that there had been an accident with the gas grill.
         On the way to the hospital, Nupur again told Brown as well as paramedic
         Shawn Grindstaff that she and Wilson were arguing when Wilson threw
         gasoline on her and lit her on fire. Wilson told another paramedic and a
         hospital nurse that the fire started when he and Nupur tried to light a grill
         using gasoline.
                 The following day, Indianapolis Police Department Sergeant John
         Breedlove went to the hospital to interview Wilson. Before the interview,
         Breedlove consulted with hospital staff who advised him that Wilson was
         taking Percocet for pain. Before questioning Wilson, Sergeant Breedlove
         read him his Miranda rights and had him sign a waiver of rights form.[2]
         Wilson told the sergeant that he understood his rights, and the sergeant
         began to question him.
                 During the interview, Wilson asked to make a telephone phone call
         so that he could talk to someone because of the seriousness of the events.
         The sergeant told Wilson that he could stop answering questions at any
         time and allowed Wilson to make a telephone call. Wilson attempted to
         call his father, who he was unable to reach. After making the phone call,
         Wilson told the sergeant that the person he wanted to speak to was his
         father but that he was unable to reach him.
                 Sergeant Breedlove readvised Wilson of his rights, and Wilson told
         the sergeant that he understood those rights and was willing to continue
         answering questions. During the interview, Wilson appeared coherent,
         understood the questions the sergeant asked him, never became confused,
         and thought about and provided answers to the questions. Although Wilson
         delayed answering some of the questions about how Nupur became doused
         with gasoline and set on fire, Sergeant Breedlove interpreted Wilson’s
         responses to be deceitful rather than confused.
                 During the interview, Wilson admitted that his previous story about
         the grill accident was not true. Wilson explained that he told that story
         because he panicked. According to Wilson, he was holding a gas can while
         he and Nupur were arguing. Nupur pulled on the can and gas apparently

         2
           On rehearing, this statement was corrected to note that because of injuries to Wilson’s hands, he was
unable to sign the form for himself. Instead, after he was advised of his rights and verified that he understood them,
Sergeant Breedlove wrote on the waiver of rights form that Wilson was unable to sign because he was injured. This
correction did not alter our original disposition regarding the admissibility of his statement. Wilson v. State, No.
49A05-0806-CR-329, 904 N.E.2d 392 at *1 (Ind. Ct. App., Mar. 25, 2009).

                                                          3
      splashed on her and ignited when one of them lit a cigarette. Wilson
      explained that when Nupur drank alcohol, “she always [got] very, very
      argumentative and want[ed] to put [Wilson] down and want[ed] to say
      things to push buttons.” The State subsequently charged Wilson with
      attempted murder and aggravated battery. Nupur, who had third degree
      burns on 80% of her body, was placed in a drug-induced coma to allow for
      treatment and pain management. After she died from multi-organ failure
      resulting from her burns five weeks later, Wilson was charged with murder.
              At trial, additional evidence revealed that in March 2007, while
      Nupur was staying at a hotel in Indianapolis, she and Wilson got into a
      physical altercation. Jimmy Barona, the hotel’s owner, testified that
      Nupur’s hair was messed up, and she had a black eye and scratches on her
      face. When Nupur and Barona told Wilson to leave Nupur’s hotel room,
      Wilson pushed Nupur and appeared ready to fight Barona. Barona and a
      hotel maintenance worker had to physically remove Wilson from the room.
              In addition, a former neighbor testified that Wilson and Nupur
      argued every day. According to the neighbor, one night Wilson banged on
      Nupur’s apartment door for hours demanding to be let into the apartment.
      The following morning, the neighbor noticed plaster from the ceiling and
      the walls had been knocked to the floor by Wilson’s banging.
              Also at trial, ATF Fire Research Engineer Brian Grove testified that
      he conducted nine tests where gas was splashed on a manikin [sic] wearing
      jeans and a sweater similar to those that Nupur was wearing. The tests
      revealed that Nupur was seated when she was doused with approximately
      one-half cup of gasoline below her waistband and above her knees. The
      gasoline was then ignited with a flame, not a cigarette, which had to have
      been placed one to two inches from the gasoline. Two lighters were found
      on the patio where Nupur was sitting. One of the lighters was found on a
      table, and the other was found on the ground.
              Wilson testified that at the time he gave his statement to Sergeant
      Breedlove, Wilson was “pretty doped up,” and easily confused. He also
      testified that Nupur set herself on fire and asked him not to tell anyone what
      she had done. . . .

Wilson v. State, No. 49A05-0806-CR-329, 900 N.E.2d 828 at *1-2 (Ind. Ct. App., Jan.

16, 2009) (record citations omitted), corrected on reh’g, trans. denied. Wilson’s family

retained attorney Marvin Coffey shortly after the charges were filed, and Coffey

represented Wilson through trial and sentencing. A jury found Wilson guilty after a



                                            4
three-day trial, and the trial court sentenced him to sixty years, with fifteen years

suspended, five of which were to be served on probation.

         On direct appeal, Wilson argued the trial court erred in admitting into evidence his

statement to police because it was not voluntary and was admitted in violation of his right

to counsel. He also argued the evidence was insufficient to support his conviction. This

court affirmed Wilson’s conviction, holding the trial court did not err in admitting his

statements, id. at *3-4, and there was sufficient evidence to support the jury’s verdict, id.

at *5.

         In 2009, Wilson filed a petition for post-conviction relief that was later amended

by counsel. He alleged he was entitled to relief because his trial counsel had been

ineffective in numerous respects. Following a hearing, the post-conviction court entered

findings of fact and conclusions thereon, denying Wilson’s petition for post-conviction

relief upon finding his trial counsel was not ineffective. Wilson now appeals the denial

of relief.

                                   Discussion and Decision

                                    I. Standard of Review

                                  A. Post-Conviction Relief

         The petitioner in a post-conviction proceeding bears the burden of establishing

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013). When appealing from the denial of

post-conviction relief, the petitioner is appealing from a negative judgment and bears the

burden of showing that the evidence as a whole unerringly and unmistakably leads to a

                                              5
conclusion opposite that reached by the post-conviction court. Wilkes v. State, 984

N.E.2d 1236, 1240 (Ind. 2013). “In other words, the [petitioner] must convince this

Court that there is no way within the law that the court below could have reached the

decision it did.” Id. (emphasis in original) (citation omitted). In reviewing the judgment

of the post-conviction court, we consider only the evidence and reasonable inferences

supporting the judgment. Walker v. State, 988 N.E.2d 1181, 1185 (Ind. Ct. App. 2013),

trans. denied.       The post-conviction court is the sole judge of the evidence and the

credibility of the witnesses, and we accept the court’s findings of fact unless they are

clearly erroneous.3 Dickens v. State, 997 N.E.2d 56, 60 (Ind. Ct. App. 2013), trans.

denied. We accord no deference to the court’s conclusions of law, however. Id.

                                  B. Ineffective Assistance of Counsel

        In his petition for post-conviction relief, Wilson alleged that he received

ineffective assistance from his trial counsel. To prevail on an ineffective assistance

claim, Wilson must satisfy the two-part test set forth in Strickland v. Washington, 466

U.S. 668 (1984).           First, he must demonstrate that his counsel’s performance was

deficient; that is, that counsel’s performance “fell below an objective standard of

reasonableness.”        Id. at 687-88.         Our scrutiny of counsel’s performance is “highly

        3
            As part of his Statement of the Case, Wilson alleges the post-conviction court’s “findings are not the
product of independent and objective decision-making” and should not be accorded deference because they are the
State’s proposed findings verbatim. Brief of Appellant at 2-3. Although the wholesale adoption of the prevailing
party’s findings and conclusions is not encouraged, neither is it prohibited. Prowell v. State, 741 N.E.2d 704, 708-
09 (Ind. 2001). The critical inquiry is whether the findings made or adopted by the court are clearly erroneous.
Saylor v. State, 765 N.E.2d 535, 565 (Ind. 2002), rev’d on reh’g on other grounds, 808 N.E.2d 646 (Ind. 2004).
          Wilson also mentions that the post-conviction court’s order does not include citations to the record,
“depriving this Court of means by which to gauge the accuracy of the hearing court’s findings[,]” citing Appellate
Rule 22(C). Appellant’s Brief at 3. While citations to the record by the post-conviction court would certainly be
welcome, Rule 22 (C) applies to the parties’ briefing of a case on appeal and does not impose any requirements on
the lower court.

                                                         6
deferential[,]” and we “indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689. “[A] defendant must

offer strong and convincing evidence to overcome this presumption.” Ritchie v. State,

875 N.E.2d 706, 714 (Ind. 2007). Second, he must show that the deficient performance

caused prejudice to him by showing a “reasonable probability that, but for counsel’s

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

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. A defendant claiming ineffective assistance

must make both showings, and therefore, “a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant” if

addressing prejudice first is the easier course. Id. at 697. “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.”

Ritchie, 875 N.E.2d at 719.

                 II. Assertions of Ineffective Assistance by Trial Counsel

       Wilson cites several instances in which his trial counsel allegedly performed

deficiently and caused him prejudice. We address each in turn.

                               A. Lesser-Included Offenses

       Wilson alleges his trial counsel was ineffective for failing to adequately counsel

him about the possibility of tendering lesser-included offense instructions to the jury,

prejudicing him because he might not have been convicted of murder if the instructions

had been given. As to this allegation of error, the post-conviction court concluded that

                                              7
the decision was a reasonable tactical decision made with input from Wilson and that

there was no prejudice because the record supports the jury’s finding.

         Coffey testified at the post-conviction hearing that he had consulted with Wilson

prior to trial about the possibility of offering instructions on lesser-included offenses:

         Well, I just explained to him that those charges carry lesser penalties. I also
         explained to him that if they – if the State did not make all the elements of a
         murder case that they might just have him walk or might find him not
         guilty. Then there’s a decision you have to make as to whether you want to
         risk all or nothing. Whether there’s an opportunity for the State not to
         convince the jury that he was guilty of an intentional act, okay, that is laid
         out in the law. On the other hand, when you put in lesser included offenses,
         sometimes the jury will come back and they’ll compromise . . . . I explained
         all of that to him and I told him the decision was his to make whether he
         wanted me to put those in or not.

PCR Transcript at 47-48. He further testified that Wilson was the one who ultimately

decided to put the State to its proof on murder alone, though he admitted he did not think

either of them was sure that was the correct course. Id. at 112-13.4

         Assuming without deciding that Wilson would have been entitled to lesser-

included offense instructions, it is well established that counsel may pursue an “all or

nothing” strategy. Hogan v. State, 966 N.E.2d 738, 749 (Ind. Ct. App. 2012), trans.

denied. Our supreme court has previously held that “a tactical decision not to tender a

lesser included offense does not constitute ineffective assistance of counsel, even where

the lesser included offense is inherently included in the greater offense.” Autrey v. State,

700 N.E.2d 1140, 1141 (Ind. 1998) (citation omitted). Such a strategy does not constitute

ineffective assistance of counsel unless it is “so deficient or unreasonable as to fall
         4
           Wilson also testified at the post-conviction hearing and disagreed with Coffey’s characterization of their
discussion and the decision regarding lesser-included offenses. The post-conviction court specifically stated that it
found Coffey’s testimony on this issue credible and Wilson’s not credible. See PCR Appendix at 76.

                                                          8
outside of the objective standard of reasonableness.” Id. “This is so even when such

choices may be subject to criticism or the choice ultimately prove detrimental to the

defendant.” Id. (internal quotation and citation omitted). “It is not proper for [appellate

courts] to second-guess an attorney through the distortions of hindsight.” Page v. State,

615 N.E.2d 894, 896 (Ind. 1993).

       Here, Coffey testified that his primary strategy was to stick to Wilson’s version of

events and show that the fire was the result of an accident or was Nupur’s own doing. Cf.

Smith v. State, 792 N.E.2d 940, 945-46 (Ind. Ct. App. 2003) (holding trial counsel was

not ineffective for failing to tender lesser-included offense instructions even when trial

strategy was to argue that the defendant was guilty of a lesser offense but not guilty of the

charged offense), trans. denied. He testified regarding the concern over a compromise

verdict if lesser-included offense instructions were given.       And he testified that he

ultimately left the decision to Wilson. Though the all or nothing strategy can be risky, it

is a viable and reasonable strategy in the proper circumstances. See Lane v. State, 953

N.E.2d 625, 630 (Ind. Ct. App. 2011).

       Wilson argues the strategy was not reasonable in this case because it became

untenable when the trial court made evidentiary rulings against the defense. Coffey had

wanted to introduce evidence that Nupur had made a prior false allegation of abuse by a

boyfriend in order to cast doubt on her statements implicating Wilson. This avenue of

inquiry, among others addressing Nupur’s credibility, was denied by a pre-trial ruling. At

Coffey’s request, the trial court certified its order for interlocutory appeal, but this court

denied the motion to accept the appeal. He had also wanted to introduce evidence

                                              9
regarding the fact that Nupur was Hindu and that fire and reincarnation were important

elements of the Hindu religion to support the idea that she might have intentionally set

the fire herself.5 This, too, was denied by a pre-trial ruling. Coffey made an offer of

proof at trial regarding both issues in order to preserve the evidentiary issues for appeal.

Coffey believed that the evidence should have been admitted and that if Wilson was

found guilty, his conviction would be reversed on appeal due to errors in the trial court’s

evidentiary rulings. See PCR Tr. at 43 (Coffey testifying that he told Wilson “if we can’t

get it in now after an appeal, we we’re [sic] gonna get a new trial.”). He therefore took

steps to preserve the alleged error and continued to pursue the accident/self-inflicted

injury theory through the available evidence.

        Although Wilson contends pursuing this theory even after the evidence was

excluded was a fundamentally flawed strategy, he does not suggest an alternative theory

that would have fared better.6 Wilson was charged with “knowingly kill[ing] another

human being, namely: Nupur Srivastava, by pouring or placing gasoline on [her] person

and/or clothing . . . and lighting her on fire with a flame source . . . .” Trial App. at 74.

Wilson’s statements, though inconsistent in the details, were consistent in asserting that

he did not know how the gas was spilled on Nupur or how the fire was ignited. Based on

those statements, a defense theory that he did not have the requisite mens rea to support a

murder conviction as charged was reasonable, whether or not the proffered evidence was

        5
          According to the State’s Motion in Limine, “it appears that [the testimony of a proposed defense witness]
would concern an old Hindu practice of sati which is to burn oneself to death.” Tr. App. at 209.
        6
           If the ultimate goal was to procure an outright acquittal, the all or nothing approach Coffey pursued was
the only reasonable strategy, as even Wilson’s post-conviction counsel conceded at oral argument that if the lesser-
included offense instructions had been given, Wilson would at least have been found guilty of reckless homicide.

                                                        10
in fact admissible. “Counsel is afforded considerable discretion in choosing strategy and

tactics, and these decisions are entitled to deferential review.” Stevens v. State, 770

N.E.2d 739, 746-47 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).

       Moreover, our supreme court held in a similar case that not only was trial

counsel’s all or nothing strategy a reasonable tactical decision, but also that the defendant

did not demonstrate prejudice because his conviction was not “fundamentally unfair or

unreliable.” Autrey, 700 N.E.2d at 1142 (quotation omitted). This court has already held

on direct appeal that there was sufficient evidence supporting Wilson’s murder

conviction. The failure to request lesser-included offense instructions does not warrant

reversal when the facts support a conviction of the greater offense. Warner v. State, 577

N.E.2d 267, 271-72 (Ind. Ct. App. 1991) (holding that defendant was not prejudiced by

counsel’s failure to tender lesser-included offense instructions where court had already

determined the evidence was sufficient to support conviction of the greater offense). If

the jury had been instructed on lesser-included offenses, it still would have considered the

same evidence. Based upon that evidence, the jury found the State had proved beyond a

reasonable doubt the elements of knowing murder.           We cannot say the result was

fundamentally unfair or unreliable.

       Finally, Wilson argues that his discussions with Coffey regarding lesser-included

offenses occurred before trial and were not ongoing as the proceedings developed and

circumstances changed. Coffey did testify that the discussions took place prior to trial.

However, the discussions took place after they knew the trial court was not going to



                                             11
allow some of the evidence he had intended to present.7 This was not a situation where

the decision was made in advance of trial with the expectation that certain evidence

would be admitted and then when that evidence was excluded at trial, the decision should

have been reconsidered in light of the new circumstances. Rather, the decision was made

with full knowledge of that evidence being unavailable to the defense. See PCR Tr. at

46-47 (Coffey testifying that he last spoke with Wilson about lesser-included instructions

one to three weeks prior to trial and that “when I explained that to him, I knew that they

weren’t gonna let [that evidence] in . . . .”), and at 221 (Wilson testifying that he “was

made aware that several key pieces of evidence were not gonna be allowed in the trial.”).

Wilson does not point to any other development during trial that substantially changed

the understanding with which he made his decision or that should have changed the

strategic decision to seek an all or nothing verdict on the murder charge.

                                       B. Failure to Present Evidence

         Wilson next alleges his trial counsel was ineffective for failing to present evidence

regarding both his and Nupur’s levels of intoxication at the time of the incident,

prejudicing him because the reliability of statements made in the immediate aftermath

would have been suspect with this evidence. With respect to this allegation of ineffective

assistance, the post-conviction court concluded that Wilson had shown neither deficient

performance nor prejudice.




         7
           Coffey made an offer to prove at trial and the trial court made a final ruling affirming its earlier orders on
the motions in limine. This ruling confirmed but did not change the circumstances under which Wilson made the
decision to proceed without lesser-included instructions.

                                                          12
       Coffey testified at the post-conviction hearing that he considered Nupur’s state of

sobriety at the time of the incident to be important. Contained within Nupur’s medical

records, which Coffey subpoenaed as part of his trial preparation, was evidence of her

blood alcohol concentration shortly after she arrived at the hospital (.266) and four hours

later (.177). However, Coffey testified that when he reviewed the records pre-trial, he did

not recognize the significance of anything therein in relation to her level of intoxication

“because I didn’t understand it at the time.” PCR Tr. at 61; see also id. at 66 (“I have not

had that much experience with blood alcohol levels in alcohol records, so I didn’t

understand what that meant.”). Coffey did, however, have a doctor review the records, so

he did not rely solely on his own understanding (or lack thereof) of the records. Further,

he elicited testimony at trial that Nupur had a drinking problem, that she and Wilson met

at a rehabilitation facility, that she was on the verge of returning to rehab when this

incident occurred, and that on the way to the hospital, she told the paramedic that she had

“a lot” to drink before the incident. Trial Tr. at 151-52.

       At the post-conviction hearing, Wilson presented the testimony of Dr. Daniel

McCoy, a toxicology consultant, who explained the significance of the blood alcohol

numbers in Nupur’s hospital records and used them to back extrapolate her blood alcohol

level at the time of the incident.       He further explained how intoxication impacts

perception, memory, and ability to communicate. Wilson argues Coffey should have

presented similar evidence during his trial because, as his post-conviction legal expert

testified, a toxicological expert in essence could have said to the jury, Nupur’s statements

immediately following the incident were unreliable for scientific reasons.          “While

                                             13
defense counsel is not ineffective when he fails to present all evidence in support of the

defense position, counsel’s representation cannot be deemed adequate or effective when

he fails to produce any evidence at all from available sources in support of a defense.”

Williams v. State, 508 N.E.2d 1264, 1268 (Ind. 1987) (emphasis added). Given Coffey’s

admission that he did not understand the blood alcohol results in the medical records, we

cannot categorically say that his omission of them as evidence was a strategic decision,8

but we can say that the essence of the information was communicated to the jury.

Although he may not have presented all available evidence, Coffey did present evidence

of Nupur’s intoxication at the time of the incident as well as her history with alcohol.

And the members of the jury likely brought with them into the courtroom their own

experiences or observations regarding the effects of intoxication. “Strickland does not

guarantee perfect representation, only a reasonably competent attorney.” Woodson v.

State, 961 N.E.2d 1035, 1041-42 (Ind. Ct. App. 2012) (citation and quotation marks

omitted), trans. denied.

        With regard to Wilson, his hospital records also contained evidence of his blood

alcohol content, and again, Coffey did not present this evidence to the jury. During the

post-conviction hearing, Dr. McCoy explained the significance of Wilson’s records,

conducted the calculation to determine his blood alcohol content at the time of the

incident, and again described the cognitive effects of intoxication. Wilson argues Coffey

should have presented this evidence at trial because the State relied in part on his

        8
           Counsel did also testify that he did not want Nupur’s entire medical record being admitted and the State
had indicated to him that if he tried to introduce part of the record, the State would request that the remainder be
admitted. PCR Tr. at 74-75.

                                                        14
inconsistent statements and a high level of intoxication could explain those

inconsistencies.   However, the defense theory relied on the jury believing Wilson’s

recollections from the day of the incident—that the fire started accidentally or was started

by Nupur herself, that he tried to put the fire out, and that he carried her into the house

and put her in the bathtub. Although there was testimony that Wilson, too, had been

drinking prior to the incident, focusing on the unreliability of intoxicated persons in

remembering and relating events by calling an expert to testify at length would have

undermined that theory. “There is no constitutional requirement that a defense attorney

be a flawless strategist or tactician.” Woodson, 961 N.E.2d at 1042.           “Reasonable

strategy is not subject to judicial second guesses.” Pryor v. State, 973 N.E.2d 629, 632

(Ind. Ct. App. 2012) (citation omitted). We “will not lightly speculate as to what may or

may not have been an advantageous trial strategy as counsel should be given deference in

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

Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).

       Even if counsel should have introduced the blood alcohol evidence and provided a

thorough explanation of the cognitive effects of intoxication and how that related to the

evidence at trial, we cannot say Wilson has shown a reasonable probability that the result

would have been different. Intoxication was an element of the case even without the

specific numbers. Wilson has not convinced us there is no way the post-conviction court

could have concluded counsel was not ineffective in this regard.




                                            15
                                       C. Failure to Object

       Wilson next contends his trial counsel was ineffective for failing to object to

Nupur’s statements to the paramedics and to evidence of uncharged misconduct on

Wilson’s part. In order to prove ineffective assistance premised on counsel’s failure to

object, the petitioner must show that an objection would have been sustained if it had

been made, that the failure to object was unreasonable, and that he was prejudiced. Potter

v. State, 684 N.E.2d 1127, 1134 (Ind. 1997).           The post-conviction court concluded

Wilson had neither proven an objection would have been sustained nor that he was

prejudiced by the failure to object.

                                   1. Nupur’s Statements

       Wilson contends that Coffey should have objected to statements Nupur made to

paramedics implicating Wilson and that had he objected, the objection would have been

sustained because whether or not Nupur’s statements were admissible under our hearsay

rules as Coffey believed, they were testimonial statements precluded by the

Confrontation Clause as explained beginning with Crawford v. Washington, 541 U.S. 36

(2004).

       The Confrontation Clause of the Sixth Amendment to the United States

Constitution, made applicable to the States by the Fourteenth Amendment, provides in

relevant part, “In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” A witness’s testimony against a defendant is

inadmissible under the Confrontation Clause unless the witness appears at trial or, if the

witness is unavailable, the defendant had an opportunity to cross-examine him prior to

                                               16
trial. Crawford, 541 U.S. at 53-54. Accordingly, the United States Supreme Court has

determined that a statement violates the Confrontation Clause if it is testimonial in nature.

Id. at 59. Testimonial statements by a person who is absent from trial are prohibited even

if they qualify for a state hearsay exception. Fowler v. State, 829 N.E.2d 459, 464 (Ind.

2005), cert. denied, 547 U.S. 1193 (2006).         To determine whether a statement is

testimonial, we must decide whether it has “a primary purpose of creating an out-of-court

substitute for trial testimony.” Michigan v. Bryant, 131 S.Ct. 1143, 1155 (2011).

       Although the U.S. Supreme Court did not comprehensively define the
       breadth of testimonial statements in Crawford, it did describe a core class
       of testimonial statements that included (1) ex parte in-court testimony such
       as affidavits, custodial examinations, prior testimony that the defendant was
       unable to cross-examine, or similar pretrial statements that declarants
       would reasonably expect to be used prosecutorially; (2) extrajudicial
       statements contained in formalized testimonial materials, affidavits,
       depositions, prior testimony, or confessions; and (3) statements made under
       circumstances that would lead an objective witness to reasonably believe
       that the statement would be available for later use at a trial.

Baer v. State, 942 N.E.2d 80, 106 (Ind. 2011) (citing Crawford, 541 U.S. at 51-52). The

primary purpose inquiry is an objective one. Bryant, 131 S.Ct. at 1156. Important

considerations are whether an ongoing emergency exists, the formality or informality of

the encounter, the victim’s medical condition, and the statements and actions of all

participants. Id. at 1156-62. This court has applied the primary purpose inquiry to

statements made in circumstances outside the realm of police questioning. Perry v. State,

956 N.E.2d 41, 53 (Ind. Ct. App. 2011) (applying the inquiry to statements made to

medical personnel).




                                             17
       Jeffrey Brown, one of the firefighters/paramedics who responded to the 911 call

about a residence fire and a possible injured person testified that when he saw Nupur

walking out of the garage, “the front of her clothes were burned off from her jeans at her

knee level all the way up to her shirt and her bra and there was some skin hanging off the

front and her bra was hanging down and her jeans were basically burned off in the front

. . . .” Trial Tr. at 132. He did not want her to sit down or to stop so he escorted her to

the waiting ambulance and observed “burns [that] looked like third degree full – what we

call full thickness burns and the most severe area was from the middle of her thighs to her

belly button.” Id. at 133. She asked him a couple of times to help her. In order to be

able to tell emergency room staff what they were dealing with, he asked her what had

happened, at which time she “looked back towards the house [and] said, he poured gas on

me and burned—” Id. at 134. Only then did Brown realize “that there was a scene here

that we weren’t prepared for,” and indicated to his colleagues police should be called. Id.

       After Brown escorted Nupur to the ambulance, he stepped away to allow the

EMTs room to work and then he saw Wilson for the first time. During a brief encounter,

Wilson told Brown that they had an accident with the grill. Because there were other

paramedics and EMTs on site who could help Wilson, Brown got back in the ambulance

to assist with Nupur and “[j]ust to verify the situation again [because w]e don’t know

how long our patients are gonna stay conscious especially if it’s a severe injury[,]” he

asked Nupur to confirm what had happened and she again stated that “he poured gas on

me. He burnt me.” Id. at 138. All of this occurred in “just maybe a minute or so initial

treatment on the patient . . . and yes, we – at that point in time we don’t waste any time

                                            18
on the scene.” Id. Brown considered Nupur’s injuries potentially fatal because of the

severity of the burns.

        The circumstances of the encounter were informal and brief.                           The encounter

occurred at the scene while there was urgency to assess and begin to treat Nupur’s burns.

Brown, seeing only Nupur at first, had no reason to believe that anyone else was involved

when he first asked her what had happened. Nupur was obviously seriously injured and

her first statements were to ask Brown to help her. Although Brown did repeat his initial

question to Nupur, he did not ask for any further details or continue questioning her about

the incident. Though Brown’s thoughts may have turned toward investigation after

Nupur indicated another person had caused her harm, and especially after he heard a

different explanation from Wilson, there is no indication that his initial question to Nupur

was for the primary purpose of creating an out-of-court substitute for testimony.

Objectively evaluating the statements and actions of the parties to the encounter and in

light of the circumstances in which the “interrogation” occurred, at the very least,

Nupur’s initial statement that Wilson had poured gas on her and burned her was not

testimonial in nature and her subsequent statements were cumulative of evidence

properly admitted. Therefore, an objection based on Crawford would not have been

sustained if made and as the post-conviction court found, Wilson did not prove that

Coffey was ineffective for failing to make the objection.9




        9
           Because such an objection would not have been sustained even if made, there is no need to address
Wilson’s allegations that Coffey was ineffective because he was not aware of Crawford and its progeny at the time
of trial.

                                                       19
       As to the hearsay rules, Coffey testified (albeit somewhat vaguely) that he thought

the statements were admissible and the post-conviction court found that Nupur’s

statements would have been admitted under the excited utterance or medical diagnosis

exceptions. See Ind. Evidence Rule 803(2), (4). For a statement to be admitted under

Indiana Rule of Evidence 803(2), the exception for an excited utterance, three elements

must be shown: (1) a startling event, (2) a statement made by a declarant while under the

stress of excitement caused by the event, and (3) that the statement relates to the event.

Fowler v. State, 829 N.E.2d 459, 463 (Ind. 2005). “The ultimate issue is whether the

statement is deemed reliable because of its spontaneity and lack of thoughtful reflection

and deliberation.” Id. A declaration does not lack spontaneity just because it was in

answer to a question. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996). In addition,

the time between the startling event and the hearsay statement is one factor to be

considered, but the amount of time that has passed is not dispositive. Id.

       Here, catching on fire is unquestionably a startling event. Brown testified that

they arrived “very quickly” after getting the 911 call, trial tr. at 134, and he was on the

scene for only a few minutes before Nupur was transported to the hospital. Nupur’s

statements to him were therefore made shortly after the event, and given that she initially

and repeatedly expressed a desire for help, it is clear that she was under the stress of the

event. Finally, her statement related to the event. The post-conviction court did not




                                            20
clearly err in finding that the statements would have been admitted under an exception to

the hearsay rule and that Coffey was not ineffective for failing to object on this basis.10



                                      2. Uncharged Misconduct

        Wilson also contends that Coffey should have objected to evidence of Wilson’s

uncharged misconduct against Nupur on two prior occasions:                         1) testimony that a

neighbor heard frequent arguing between Wilson and Nupur in early 2007 and 2)

testimony that Wilson and Nupur were involved in an altercation at a motel where Nupur

was staying in March 2007. Coffey did file a motion in limine seeking to exclude this

evidence, which the trial court denied because “evidence of prior conflict between the

victim and the defendant, as prior confrontation and assaults, is admissible to characterize

the relationship between the victim and the defendant to show a motive for committing

the crime.” Trial App. at 211. Coffey did not object contemporaneously with the

admission of the evidence at trial.

        Evidence Rule 404(b) provides that otherwise inadmissible evidence of prior

wrongs or bad acts may be admissible to prove “motive, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident . . . .”                        In assessing the

admissibility of evidence under Rule 404(b), we must determine (1) whether the evidence

of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s


        10
            Because the statements were admissible under the excited utterance exception, we need not address
whether they were also admissible as a statement made for the purpose of medical treatment or diagnosis.
Moreover, her subsequent similar statements to medical personnel were cumulative. See Gaines v. State, 999
N.E.2d 999, 1005 (Ind. Ct. App. 2013) (“The admission of evidence is harmless and is not grounds for reversal
where the evidence is merely cumulative of other evidence properly admitted.”).

                                                     21
propensity to commit the charged acts; and (2) whether the probative value of the

evidence outweighs the prejudicial effect pursuant to Indiana Evidence Rule 403. Holden

v. State, 815 N.E.2d 1049, 1054 (Ind. Ct. App. 2004), trans. denied.

       In Spencer v. State, 703 N.E.2d 1053 (Ind. 1999), our supreme court held that the

trial court did not abuse its discretion in admitting evidence of prior batteries perpetrated

by the defendant against the victim because “where a relationship between the parties is

characterized by frequent conflict, evidence of the defendant’s prior assaults and

confrontations with the victim may be admitted to show the relationship between the

parties and motive for committing the crime—‘hostility.’” Id. at 1056. As for the

probative value of the evidence, the court noted that if too much time has passed since the

prior conduct, the probative force of such evidence is diminished.          Id.   The court

therefore held that the three years that had elapsed between the time two of the three prior

bad acts occurred and the time the charged crime was committed was too long. Id. Here,

Wilson said in his statement to police that he and Nupur had been arguing before the fire,

and that when Nupur drank, she became argumentative and “wants to put me down and –

wants to – just say things to push buttons or whatever.” State’s Trial Exhibit 73 at page

8; see also id. at page 9 (Wilson stating that he and Nupur had struck each other in the

past, but “not like – anything serious.”). Wilson’s own statements implied a volatile

relationship between the parties. The prior bad acts that were admitted occurred within

months of the fire. Therefore, the evidence was relevant to an issue other than propensity

and had sufficient probative value because Wilson’s motive and intent were at issue. See

Crain v. State, 736 N.E.2d 1223, 1235-36 (Ind. 2000) (where defendant in murder case

                                             22
“went beyond merely denying the charged culpability and affirmatively presented a claim

of particular contrary intent—accidental killing[,]” evidence of prior batteries against the

victim were admissible). Therefore, any objection to this evidence would not have been

sustained.

         Moreover, whether or not the evidence was admissible, the trial court had already

ruled on the evidence in pre-trial proceedings. Although a ruling on a motion in limine is

not a final ruling on the admissibility of evidence, see Dickey v. State, 999 N.E.2d 919,

921 (Ind. Ct. App. 2013), the trial court had already considered this issue after a hearing

at which both parties presented argument in addition to their written pleadings. Wilson

has not shown that the evidence as adduced at trial shed any additional or different light

on the circumstances which led to the trial court’s initial ruling. Given that prior ruling,

Wilson has failed to show that an objection on this issue at trial would have been

sustained.11

                                             D. Police Testimony

         Wilson next contends his trial counsel was ineffective for not filing a pre-trial

motion to suppress his statement to police but instead objecting to the statement and

asking the detective preliminary questions in front of the jury during his testimony.

Specifically, Wilson argues the “failure to litigate the issue of admissibility of Wilson’s

recorded statements to the police in an appropriate pre-trial context is further proof of his


          11
             Wilson also briefly mentions at the end of this argument that Coffey should have requested a limiting
instruction with respect to this evidence. He does not appear to have raised this issue in his post-conviction petition,
alleging only error in counsel’s failure to object. See PCR App. at 249. “Issues not raised in the petition for post-
conviction relief may not be raised for the first time on post-conviction appeal.” Allen v. State, 749 N.E.2d 1158,
1171 (Ind. 2001) (citing P-C.R. 1(8)).

                                                          23
lack of preparation and his misunderstanding of proper legal procedure.”              Br. of

Appellant at 42. The post-conviction court concluded counsel’s performance in this

respect was neither deficient nor prejudicial.

         First, to prove deficient performance in the failure to file a motion to suppress,

Wilson must show that such motion would have been successful. Pace v. State, 981

N.E.2d 1253, 1258 (Ind. Ct. App. 2013).           Coffey objected to the admission of the

statement at trial and the objection was overruled. Moreover, the admissibility of the

statement was raised on direct appeal, and this court held the trial court did not err in

admitting the statement. Therefore, the likelihood that a motion to suppress would have

been successful is small. Second, to the extent Wilson argues the jury should not have

heard some of what was adduced during preliminary questioning—specifically that

Wilson asked to speak with his father at the outset of the interview—that same

information was part of the statement the jury ultimately heard regardless. And finally,

hearing the trial court specifically say the statement was admissible would not likely

sway the jury to give more consideration to that particular piece of evidence than any

other evidence, as every time an exhibit is offered into evidence, it is admitted by the trial

court.

         Wilson also argues Coffey should have moved to strike the detective’s response to

his question about whether or not Wilson was confused when answering questions during

the police interview. Specifically, Coffey had been questioning the detective about the

various answers Wilson gave during his statement about whether Nupur was standing up

or sitting down when the gas was spilled on her:

                                             24
       Q: You didn’t take that as any kind of confusion in his mind about trying
       to recollect all this stuff?
       A: No, I took it as deceitful.

Trial Tr. at 197-98. Wilson argues this was impermissible opinion testimony in violation

of Evidence Rule 704(b). Evidence Rule 704(b) provides that “[w]itnesses may not

testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or

falsity of allegations; whether a witness has testified truthfully; or legal conclusions.”

(2013.) “Such testimony is an invasion of the province of the jurors in determining what

weight they should place upon a witness’s testimony.” Bradford v. State, 960 N.E.2d

871, 874 (Ind. Ct. App. 2012) (citation omitted). The detective’s statement was not the

sort of vouching testimony our courts have found improper. See, e.g., id. at 876-77

(holding social worker’s testimony that she had substantiated claims of sexual abuse by

the child victim was an improper opinion regarding the truthfulness of the allegations and

was reversible error because the State referred to her testimony repeatedly). Moreover,

given the context of Coffey’s question, the detective did not specifically comment on any

of the things precluded by Rule 704(b). Regardless, Coffey may have decided not to

object in order to avoid drawing further attention to an answer he sought but perhaps did

not expect, which would be a reasonable tactic. See Roberts v. State, 419 N.E.2d 803,

810 (Ind. Ct. App. 1981) (noting counsel “well may have desired to avoid drawing

additional attention” to a particular bit of evidence by making objections and requesting

instructions which is a trial tactic the reviewing court will not second guess).

                               E. Prosecutorial Misconduct



                                             25
        Wilson next alleges trial counsel was ineffective for failing to seek a ruling on

alleged prosecutorial misconduct. The last thing Coffey said in his closing argument was

that “I didn’t put a story in Michael’s mouth. If I had it would have been better than the

one he told, okay? Find him not guilty. Send him home. Thank you.” Trial Tr. at 516.

The State then began its rebuttal argument:

        [State]: He absolutely put a story in his client’s mouth. His client from the
        beginning keeps changing the facts to meet the evidence.
        [Coffey]: Excuse me, Judge, there is no evidence I put a story in my –
        [Judge]: That what he said you absolutely didn’t.
        [Coffey]: Oh –
        [State]: No, he absolutely did . . . .

Id. The post-conviction court concluded Wilson failed to show that the State’s comments

were misconduct and therefore failed to show that any curative relief requested would

have been granted.

        Wilson asserts it was unprofessional for the State to allege unethical behavior by

defense counsel. Recently, in Ryan v. State, 9 N.E.3d 663 (Ind. 2014), our supreme court

held:

        While comments that demean opposing counsel, especially in front of a
        jury, are inappropriate, not all of the allegedly improper comments here are
        objection-able. Prosecutors are entitled to respond to allegations and
        inferences raised by the defense even if the prosecutor’s response would
        otherwise be objectionable.

Id. at 669 (internal quotation marks and citations omitted). The then-prosecutor testified

at the post-conviction hearing that he was most likely commenting on the inconsistencies

in Wilson’s pre-trial statements and trial testimony which Coffey had tried to explain

away in his closing. PCR Tr. at 274. That he did so in the terms Coffey himself used


                                              26
was not objectionable. See Roberts, 419 N.E.2d at 810 (noting that “the failure of

counsel to object to improper remarks by the prosecutor is not proof of incompetence.”).

                                   F. Cumulative Error

       Finally, Wilson contends that the cumulative errors by his trial counsel undermine

confidence in the jury verdict and warrant post-conviction relief. The post-conviction

court notes that Wilson did not assert cumulative error as a basis for relief in his petition

but included such in the proposed findings of fact he submitted to the court. See PCR

App. at 94. “Errors by counsel that are not individually sufficient to prove ineffective

representation may add up to ineffective assistance when viewed cumulatively.”

Pennycuff v. State, 745 N.E.2d 804, 816-17 (Ind. 2001). A conviction based upon an

accumulation of errors, when counsel’s mistakes do substantial damage to the defense,

must be reversed. French v. State, 778 N.E.2d 816, 826 (Ind. 2002). In Williams v.

State, 508 N.E.2d 1264 (Ind. 1987), our supreme court reversed a conviction based upon

an accumulation of defense attorney errors, finding counsel for the defendant provided

merely perfunctory representation that “graphically portrays a breakdown in the

adversarial process which casts substantial doubt on the reliability of [defendant’s] trial

. . . .” Id. at 1268. In Conner v. State, 711 N.E.2d 1238 (Ind. 1999), cert. denied, 531

U.S. 829 (2000), the court again considered a claim of cumulative error and, citing

Williams, held that “[s]uch an unusual situation does not exist in this case.” Id. at 1251.

As in Conner, we cannot say that counsel’s overall representation, although ultimately

unsuccessful in procuring a favorable outcome for Wilson, represented a breakdown in



                                             27
the adversarial process that would cast substantial doubt on the reliability of the Wilson’s

trial.

                                        Conclusion

         To prevail on his claim of ineffective assistance of trial counsel, Wilson had the

burden to prove to the post-conviction court that his counsel’s performance was sub-

standard and that the deficient performance prejudiced the defense.            “The Sixth

Amendment guarantees reasonable competence, not perfect advocacy judged with the

benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003). As to each of the

specified claims of deficiency, the post-conviction court made findings and conclusions

contrary to Wilson’s claim. On appeal from the judgment of the post-conviction court

denying relief, Wilson has not demonstrated that the evidence as a whole leads

unmistakably and unerringly to a conclusion contrary to the decision of the post-

conviction court. The denial of post-conviction relief is affirmed.

         Affirmed.

BAKER, J., and KIRSCH, J., concur.




                                             28
