MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 10 2018, 9:53 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel K. Whitehead                                      Curtis T. Hill, Jr.
Yorktown, Indiana                                        Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Juan Flagg,                                              May 10, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1708-PC-1719
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Respondent.                                     Judge
                                                         The Honorable Jeffrey L. Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-0712-PC-273246



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018             Page 1 of 17
                                              Case Summary
[1]   Juan Flagg (“Flagg”) appeals the denial of his petition for post-conviction relief,

      which challenged his convictions for Murder, Attempted Murder, Robbery, and

      Aggravated Battery.1 He presents the sole issue of whether he was denied the

      effective assistance of trial counsel. We affirm.



                               Facts and Procedural History
[2]   The relevant facts were stated by a panel of this Court, on direct appeal, as

      follows:


                 During the early morning hours of December 16, 2007,
                 Lamonica Radford and Anthony Graves were sleeping on their
                 living room couch in their Indianapolis home. Six children and
                 Lamonica’s uncle, Kevin Radford, were sleeping in the home’s
                 two bedrooms. At approximately 6:30 a.m., Flagg, whose
                 nickname is “Boy Boy,” and another man kicked in the door of
                 the home. Flagg was wearing a mask over part of his face and
                 carrying a gun. Flagg shot Graves in the chest, killing him.
                 Flagg also shot Lamonica in the knee. Flagg said to Lamonica,
                 “B****, give me the s*** or I’m going to kill you.” Tr. p. 107.
                 Lamonica thought Flagg was referring to money from several
                 paychecks that Graves had recently cashed. Lamonica ran from
                 the living room to one of the bedrooms, where her daughter had
                 been sleeping. Lamonica and her daughter held the door shut.
                 Flagg threatened to shoot Lamonica’s nephew if she did not open
                 the door. Flagg shot through the bedroom door and struck
                 Kevin, who had been sleeping on the bedroom floor, in the leg.



      1
          He has not challenged his conviction for Dealing in Cocaine.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 2 of 17
        During the incident, Flagg said to Lamonica, “Remember Boy
        Boy did this.” Id. at 120.


        On December 19, 2007, Flagg was arrested outside of his
        girlfriend’s apartment.2 During a search of Flagg’s girlfriend’s
        apartment, a 9-mm handgun was discovered under a mattress.
        This handgun was later determined to be the weapon used in the
        shooting.


        On December 21, 2007, the State charged Flagg with murder,
        felony murder, Class A felony robbery, Class A felony attempted
        murder, Class B felony aggravated battery, Class B felony
        criminal confinement, three counts of Class D felony criminal
        recklessness, and Class A misdemeanor carrying a handgun
        without a license. The State also alleged that Flagg’s criminal
        history supported a Class C felony enhancement for the carrying
        a handgun without a license charge. The State eventually moved
        to dismiss the criminal confinement and three criminal
        recklessness charges. A jury found Flagg guilty of the murder
        and felony murder charges, the Class A felony robbery charge,
        the Class A felony attempted murder charge, the Class B felony
        aggravated battery charge, and the Class A misdemeanor
        handgun charge. Because of double jeopardy concerns, the trial
        court entered only convictions for murder, Class C felony
        robbery, Class A felony attempted murder, and Class B felony
        aggravated battery.




2
  When Flagg was arrested, he had twenty-seven grams of cocaine and another handgun in his possession. In
a separate charging information, Flagg was charged with Class A felony dealing in cocaine, Class A felony
possession of cocaine, Class C felony possession of cocaine and a firearm, and Class A misdemeanor
carrying a handgun without a license, which was enhanced to a Class C felony based on Flagg’s criminal
history. Flagg was tried on these allegations along with the December 16, 2007 allegations and was
convicted of the Class A felony dealing charge. Flagg does not challenge the drug-related conviction in this
appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018             Page 3 of 17
      Flagg v. State, No. 49A02-0903-CR-278, slip op. at 1 (Ind. Ct. App. Dec. 18,

      2009), trans. denied. Flagg received a sentence of 133 years imprisonment.


[3]   On appeal, Flagg raised four issues. He alleged fundamental error in the

      admission of certain evidence and claimed that insufficient evidence supported

      his convictions. We affirmed Flagg’s convictions, concluding:


              The admission of Lamonica’s statements regarding her
              marijuana use, the autopsy report, and the DNA evidence do not
              rise to the level of fundamental error. There is sufficient evidence
              to support Flagg’s convictions. We affirm.


      Id. at 5.


[4]   On February 15, 2011, Flagg filed a petition for post-conviction relief. On

      January 22, 2016, he filed an amended petition, raising claims of ineffective

      assistance of trial counsel, ineffective assistance of appellate counsel, and

      prosecutorial misconduct. On March 24, 2016 and on June 16, 2016, the post-

      conviction court conducted evidentiary hearings. On July 26, 2017, the court

      issued its findings of fact, conclusions, and order denying Flagg post-conviction

      relief. Flagg now appeals.



                                Discussion and Decision
                        Post-Conviction Standard of Review
[5]   The petitioner in a post-conviction proceeding bears the burden of proving the

      grounds for relief by a preponderance of the evidence. Humphrey v. State, 73


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 4 of 17
      N.E.3d 677, 681 (Ind. 2017). On appeal, the petitioner then stands in the

      position of one appealing a negative judgment; that is, he or she must show that

      the evidence leads unerringly and unmistakably to a conclusion opposite that

      reached by the post-conviction court. Id. We do not defer to the post-

      conviction court’s legal conclusions, but a post-conviction court’s findings and

      judgment will be reversed only upon a showing of clear error, i.e., that which

      leaves us with a definite and firm conviction that a mistake has been made. Id.

      at 682.


                          Ineffectiveness Standard of Review
[6]   When evaluating an ineffective assistance of counsel claim, we apply the two-

      part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See

      Humphrey, 73 N.E.3d at 682. 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

      ‘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). 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).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 5 of 17
           Allegations Regarding Trial Counsel’s Performance
[7]   Flagg identifies five alleged deficiencies in the performance of his trial counsel:

      (1) appointed counsel did not file a successive motion for severance after the

      trial court denied a motion for severance filed by Flagg’s private counsel; (2)

      counsel did not contradict or request an admonishment regarding Lamonica’s

      denial of marijuana use; (3) counsel did not move to exclude the autopsy report

      introduced via testimony from a pathologist who did not perform the autopsy;

      (4) trial counsel did not object to the admission of DNA evidence; and (5) trial

      counsel did not depose a nine-year-old victim of the home invasion.


[8]   Severance. Flagg was arrested for Murder on December 19, 2007, in the

      exterior common area of the apartment complex where his girlfriend, India

      Stone (“Stone”), leased an apartment. Flagg was found to be in physical

      possession of a Ruger firearm, scales, and a large amount of cocaine.

      Additionally, police officers recovered from underneath a mattress inside

      Stone’s apartment a Cobray firearm subsequently tested and found to be the

      weapon that had fired the fatal shot into Graves.


[9]   Because of the discovery of contraband incident to Flagg’s arrest, the State

      charged Flagg with drug and firearms offenses in an Information separate from

      the Information alleging Murder and contemporaneous offenses. On June 27,

      2008, the State moved to join all the offenses in the two separate cause numbers

      for trial. The State argued that the offenses were part of a joint plan, and that

      Flagg had used the cash obtained in the home invasion to purchase the cocaine


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 6 of 17
       he possessed. The State also advised the trial court that the murder weapon had

       been recovered during Flagg’s arrest. The trial court granted the State’s motion

       for joinder. Flagg’s counsel filed a motion for severance; however, the motion

       was denied.


[10]   Flagg discharged private counsel and received court-appointed counsel and co-

       counsel. After court-appointed co-counsel reviewed ballistics testing results, she

       knew that the murder weapon was recovered from inside Stone’s apartment and

       not from Flagg’s person. She discussed the matter with lead counsel, but he did

       not pursue a second motion for severance. Flagg contends that, once the

       connection between himself and the murder weapon was known to be more

       attenuated than had it been recovered from his person, counsel should have

       filed a successive motion for severance and it likely would have succeeded.


[11]   Regarding severance of offenses, Indiana Code Section 35-34-1-11(a) provides:


               Whenever two (2) or more offenses have been joined for trial in
               the same indictment or information solely on the ground that
               they are of the same or similar character, the defendant shall
               have a right to a severance of the offenses. In all other cases the
               court, upon motion of the defendant or the prosecutor, shall
               grant a severance of offenses whenever the court determines that
               severance is appropriate to promote a fair determination of the
               defendant’s guilt or innocence of each offense considering:


               (1) the number of offenses charged;


               (2) the complexity of the evidence to be offered; and



       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 7 of 17
               (3) whether the trier of fact will be able to distinguish the
                   evidence and apply the law intelligently as to each offense.


[12]   The foregoing provides two grounds for severance. A defendant is entitled to

       severance whenever the offenses have been joined for trial “solely on the ground

       that they are of the same or similar character.” Pierce v. State, 29 N.E.3d 1258,

       1265 (Ind. 2015) (quoting I.C. § 35-34-1-11(a) (emphasis in original).

       Otherwise, the trial court in its discretion must determine whether the offenses

       warrant joinder by “ask[ing] whether the operative facts establish a pattern of

       activity beyond mere satisfaction of the statutory elements.” Id. at 1266.


[13]   Indiana Code Section 35-34-1-12(a) requires that a motion for severance of

       crimes must be made before commencement of trial “except that the motion

       may be made before or at the close of all the evidence during trial if based upon

       a ground not previously known.” If a defendant’s pretrial motion for severance

       of offenses is overruled, “the motion may be renewed on the same grounds

       before or at the close of all the evidence during trial.” I.C. § 35-34-1-12(b).

       Thus, successive counsel could have pursued a second motion for severance on

       Flagg’s behalf. However, to prevail on a claim of ineffective assistance due to

       the failure to file a motion, Flagg must show a reasonable probability that the

       motion would have been granted if made. Garrett v. State, 992 N.E.2d 710, 723

       (Ind. 2013).


[14]   At the post-conviction hearing, Flagg argued that he never possessed the

       murder weapon and that his trial counsel’s failure to obtain severance of the

       offenses permitted the prosecutor to falsely argue that Flagg was either guilty or
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 8 of 17
       extremely unlucky because he was identified by a victim and then found to have

       the murder weapon. Essentially, Flagg disavowed any connection to the

       murder weapon. Flagg’s co-counsel testified that she and the lead counsel

       discussed a successive severance motion but the decision rested with the lead

       counsel; in turn, lead counsel testified that he did not pursue a second motion

       because he did not feel that it was meritorious and would have been granted.


[15]   Despite Flagg’s efforts to distance himself from the murder weapon, and his

       assertion that the precise amount of money taken in the robbery was never

       established, there were adequate facts and circumstances before the trial court

       to support its conclusion that the charged offenses were sufficiently connected

       for joinder. Lamonica reported several thousand dollars missing in the robbery

       of her boyfriend; three days later the man she identified as the perpetrator was

       found in possession of cocaine worth thousands of dollars. The murder weapon

       was recovered from inside an apartment to which Flagg had access; indeed, he

       was arrested just outside the apartment. No evidence was presented to point to

       ownership or possession by another individual. In Pierce, our Indiana Supreme

       Court found offenses sufficiently connected such that the defendant was not

       entitled to severance where “the incidents shared much more than their

       criminal category.” 29 N.E.3d at 1266. Here, the incidents likewise share more

       than a “criminal category” or the “mere satisfaction of the statutory elements.”

       See id. Trial counsel did not perform deficiently by omitting a successive

       motion for severance.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 9 of 17
[16]   Testimony regarding Marijuana. Flagg contends that his trial counsel allowed

       perjury to go unchallenged when Lamonica testified that, before she was shot,

       she went to a birthday party at her aunt’s house and drank, but did not smoke

       marijuana. Flagg argues that the denial is demonstrably false, because State’s

       Exhibit 118, a stipulation regarding medical treatment provided to three

       victims, contains the language: “At the time of Lamonica Radford’s admission

       to Wishard Hospital, she did report the use of alcohol and marijuana the

       previous night.” (St. Ex. 118, pg. 271).


[17]   Assuming the testimony and the information provided to hospital personnel

       referred to the same time frame,3 the jury had before it contradictory accounts

       of Lamonica’s marijuana use. Flagg insists that his counsel could have

       requested an admonishment but he has not provided authority for the

       proposition that such a request – to highlight alleged perjury – falls within the

       norms of reasonable representation. Indeed, “the fact of contradictory or

       inconsistent testimony does not mean the testimony is false.” Coleman v. State,

       946 N.E.2d 1160, 1167 (Ind. 2011). We find no deficiency in the omission of a

       request for admonishment to the jury in these circumstances.




       3
         On direct appeal, a panel of this Court observed: “Although her statements appear inconsistent, her
       testimony is not developed enough to show whether she was referring to not smoking marijuana on the
       evening of December 15, 2007, or not smoking marijuana in the early morning hours of December 16, 2007.
       It is also unclear whether she was referring to not smoking marijuana while at her aunt’s house or whether
       she was referring to not smoking marijuana at her house.” Flagg, slip op. at 3.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018           Page 10 of 17
[18]   Autopsy Report. Flagg contends that his trial counsel “stood idle” as Flagg’s

       Sixth Amendment right of confrontation was violated by the admission of a

       report “testimonial in nature.” Appellant’s Brief at 23. Dr. Gary Utz, who

       performed the autopsy upon Anthony Graves’s body, retired prior to Flagg’s

       trial. Another forensic pathologist, Dr. Kent Harshbarger, testified regarding

       the findings compiled in the autopsy report, State’s Exhibit 104, concluding that

       the cause of death was a gunshot wound that perforated the victim’s lung. The

       State did not demonstrate that Dr. Utz was an unavailable witness. Flagg’s

       counsel did not object on hearsay grounds. “In order to prove ineffective

       assistance of counsel due to the failure to object, a defendant must prove that an

       objection would have been sustained if made and that he was prejudiced by the

       failure.” Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001).


[19]   Under the Sixth Amendment of the United States Constitution, “[i]n all

       criminal prosecutions, the accused shall enjoy the right … to be confronted with

       the witnesses against him.” This prohibits the admission of testimonial

       statements of a witness who did not appear at trial unless he was unavailable to

       testify and the defendant had a prior opportunity to cross-examine the witness.

       Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The Court left “testimonial”

       undefined, but identified a “core class” of testimonial statements that the

       Confrontation Clause is primarily concerned with: (1) ex parte in-court

       testimony or its functional equivalent (material such as affidavits, custodial

       examinations, prior testimony or similar pretrial statements reasonably

       expected to be used prosecutorially); (2) extrajudicial statements in formalized


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 11 of 17
       testimonial materials (such as affidavits, depositions, prior testimony, or

       confessions; and (3) statements made under circumstances leading an objective

       witness reasonably to believe that the statements would be available for use at a

       later trial. Ackerman v. State, 51 N.E.3d 171, 178 (Ind. 2016) (citing Crawford,

       541 U.S. at 51-52.)


[20]   A statement should be deemed testimonial when the circumstances objectively

       indicate that it was made for the primary purpose of establishing or proving past

       events potentially relevant to later criminal prosecution. Id. (citing Davis v.

       Washington, 547 U.S. 813, 822 (2006)). “[A]lthough an autopsy could aid in the

       investigation or prosecution of a criminal case, our [Indiana] statutes alone do

       not suggest that assisting in a criminal case is the primary purpose of an

       autopsy.” Id. at 186. Moreover, the presence of police officers during the

       autopsy should not be determinative of the primary purpose. Id. at 187.

       Rather, the court determines the primary purpose by an examination of the

       circumstances surrounding the death and the conduct of the autopsy. See id.


[21]   Flagg now claims, but has not introduced evidence to establish, that the autopsy

       report was testimonial in nature.4 Flagg’s amended post-conviction petition did

       not address counsel’s performance relative to admission of the autopsy report;

       Flagg did not elicit testimony or develop a corresponding argument before the




       4
         The State observes that the autopsy report includes the notation: “The examination is being performed at
       the request of the Marion County Coroner’s Office” and there is no suggestion that it was procured at the
       request of law enforcement. (State’s Exhibit 104, pg. 2).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018            Page 12 of 17
       post-conviction court in this regard. Moreover, on appeal, he identifies no

       prejudice from the admission of the autopsy report. The cause of Graves’s

       death was not a contested issue for trial; Flagg’s defense was one of

       misidentification. Flagg may not prevail upon a bald, unsupported assertion of

       ineffectiveness for failure to object to the autopsy report. Wrinkles, 749 N.E.2d

       at 1192.


[22]   DNA Evidence. At trial, the State introduced expert testimony regarding DNA

       testing performed upon four swabs taken from the murder weapon. Forensic

       scientist Tanya Fishburn (“Fishburn”) testified that there were more than two

       contributors of DNA and Flagg was “not eliminated” as a contributor. (Tr. at

       407.) Fishburn estimated that the probability of an unrelated individual being a

       contributor was 1 in 1,000 Caucasians, 1 in 200 African Americans, and 1 in

       2,000 Hispanics. DNA samples from the shell casings produced inconclusive

       results, as was expected.5 During testing, Fishburn learned that DNA

       belonging to a crime lab employee was present on a sample; the sample was

       discarded. She denied using any contaminated sample in obtaining admissible

       results. Fishburn summarized her ultimate conclusion, that is, “nothing tested”

       led her to “say with any level of certainty” that Flagg’s DNA was present. (Tr.

       at 414.)




       5
           Fishburn estimated that a DNA profile can be obtained from shell casings in less than 1% of cases.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018               Page 13 of 17
[23]   Flagg now argues: “It goes without saying that failing to properly object or file

       the appropriate motion to suppress those exhibits, and allowing such

       objectionable evidence to go to a jury for an inference of guilt, results in

       substantial prejudice to [Flagg].” Appellant’s Brief at 25. As best we can

       discern Flagg’s corresponding argument regarding “appropriate” motions, he

       claims that counsel should have challenged the admission of results derived

       from contaminated swabs and unsupported by adequate foundational testimony

       as to the chain of custody.


[24]   At the post-conviction hearing, Flagg proceeded pro-se and explained the crux

       of his DNA argument was that the samples used at his trial had been “planted.”

       (P-C.R. Tr., Vol. I, pg. 137.) He asserted that Fishburn never received his DNA

       swab, and he elicited testimony from crime lab employees Fishburn, Melissa

       Wilson, and Sangeeta Joshi (“Joshi”) regarding their handling of evidence.

       However, their testimony did not support Flagg’s argument.


[25]   Joshi testified that she handled the DNA swabs submitted for Fishburn’s testing

       and specified that she “didn’t swap out” samples. (P-C.R. Tr. Vol. II, pg. 3.)

       Flagg expressed concern that State’s Exhibit 96, a large envelope, had not been

       delivered to Fishburn and Joshi responded to this concern at some length. She

       explained that she had received buccal swabs for DNA analysis from Detective

       Marcus Kennedy. The swabs were initially in a large envelope; however, Joshi

       repackaged the swabs into small coin-type envelopes and placed them in a

       transfer box for analysis. Fishburn testified that she received the coin-type

       envelopes and not the larger envelope. She further testified that the coin-type

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 14 of 17
       envelopes were taken to court and that she had “followed protocol” in

       providing the trial exhibits. (P-C.R. Tr. Vol. II, pg. 193). She explained that

       the crime lab employees used an electronic tracking system and each was

       required to scan a bar code upon transfer of an item. According to Fishburn, an

       up-to-date chain of custody was maintained in this manner. Fishburn, like

       Joshi, explicitly denied that evidence had been “swapped.” (P-C.R. Tr. Vol. II,

       pg. 193.)


[26]   To the extent Flagg now argues that contaminated DNA results were submitted

       into evidence by the State or that there was a break in the chain of custody,

       which might have prompted his counsel to object, the evidence presented at the

       post-conviction hearing does not point unerringly to a result opposite that

       reached by the post-conviction court. To the extent that Flagg argues he was

       deprived of a right of confrontation with respect to DNA results, he did not

       make or develop this claim before the post-conviction court. He may not do so

       now. See Boesch v. State, 778 N.E.2d 1276, 1281 (Ind. 2002) (clarifying that

       issues not raised in a post-conviction petition may not be raised for the first time

       on appeal and that “the fundamental error doctrine is not applicable in post-

       conviction proceedings.”).


[27]   Failure to Depose Child Victim. Finally, Flagg asserts that his trial counsel was

       deficient for failure to depose a nine-year-old witness, S.C. At trial, Lamonica

       testified that Flagg grabbed S.C., pointed a gun at him, and threatened to kill

       him if Lamonica refused to open the bedroom door she was hiding behind.

       According to Flagg, he “maintains that had trial counsel investigated the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 15 of 17
       criminal offense and talked with the nine-year-old boy, or taken that minor’s

       deposition, the boy would have denied that [Flagg] was the person who grabbed

       and threatened to kill him the night of the offense.” Appellant’s Brief at 29-30.


[28]   Flagg’s co-counsel conceded at the post-conviction hearing that she and the

       lead counsel did not depose the child but were aware that S.C. had “said no gun

       was pointed at him.” (P-C.R. Tr. Vol. I, pg. 110.) She testified that she and the

       lead counsel were unwilling to call any of the young children as witnesses,

       considering the State’s decision to present testimony from the eldest child

       victim, a thirteen-year-old. Co-counsel opined that “the jury didn’t want to

       hear more kids” and it was “too prejudicial.” (P.C-R. Tr. Vol. I, pg. 114.)


[29]   Counsel has a duty to make reasonable investigations, but a petitioner cannot

       prevail upon a claim of ineffectiveness for failure to investigate witnesses or

       issues unless he can show that the outcome of his case “would likely have been

       different had counsel further investigated.” Boesch, 778 N.E.2d at 1284. Here,

       Flagg asserts that S.C. would have contradicted his aunt Lamonica’s

       identification of Flagg, but this appears to be speculative. At the post-

       conviction hearing, no testimony or affidavit was submitted to establish what

       identification testimony S.C. might have provided. Flagg has not met his

       burden of proof.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 16 of 17
                                               Conclusion
[30]   Flagg has not established that he was denied the effective assistance of trial

       counsel. The post-conviction court did not clearly err in denying Flagg post-

       conviction relief.


[31]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-PC-1719 | May 10, 2018   Page 17 of 17
