                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                             Dec 14 2012, 8:40 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

STEPEN T. OWENS                                    GREGORY F. ZOELLER
Public Defender of Indiana                         Attorney General of Indiana

VICKIE YASER                                       IAN McCLEAN
Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                              Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM C. DAVIS,                                  )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )    No. 65A04-1206-PC-307
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                       APPEAL FROM THE POSEY SUPERIOR COURT
                        The Honorable James M. Redwine, Special Judge
                               Cause No. 65D01-0808-PC-382


                                        December 14, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
       William Davis was convicted of one count of Class A felony child molesting and two

counts of Class C felony child molesting and was sentenced to fifty-two years of

incarceration. This court upheld his convictions and sentence on direct appeal, and Davis

sought post-conviction relief (“PCR”). The post-conviction court denied Davis’s PCR

petition, and, while we affirmed much of the decision, we remanded for further proceedings

related to several of Davis’s claims. The post-conviction court again denied Davis relief, and

Davis appeals from that denial. Davis contends that he received ineffective assistance of trial

and appellate counsel and that the post-conviction court was biased against him. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The underlying facts of this case were related in this court’s disposition of Davis’s

direct appeal:

               Davis met J.C. and J.H. through their mother, Machelle Yott, and he
       met R.H. through R.H.’s uncle and mother. J.C. and R.H. were born
       respectively February 17, 1992 and December 19, 1990.
               Davis introduced R.H. to J.C. and J.H. The boys spent time with Davis
       and stayed overnight at his home. On various occasions, Davis penetrated
       J.C.’s anus with his penis and fingers, placed his mouth and hands on J.C.’s
       penis, and forced J.C. to place his mouth and hands on Davis’s penis.
       Similarly, Davis placed his penis against R.H.’s buttocks, placed his mouth
       and hands on R.H.’s penis, and forced R.H. to place his mouth and hands on
       Davis’s penis. J.C. witnessed Davis’s acts against R.H, while R.H. witnessed
       at least some of Davis’s acts against J.C. Further, Davis forced each victim to
       place his mouth on the other victim’s penis.
               In July, 2004, Yott called 9-1-1 regarding a conversation she had had
       with J.C. about some of these events. Evansville Police Department Officer
       Jim Harpenau interviewed all three boys and spoke briefly with Davis by
       telephone. On September 16, 2004, the State charged Davis in Posey County
       with Failure to Register as a Sex Offender, a Class D felony, and five counts of
       Child Molesting–two counts, Class A and C felonies, for acts against J.C., two
       counts, Class A and C felonies, for acts against J.H., and one count as a Class


                                              2
C felony for acts against R.H. The next day, the trial court issued a warrant for
Davis’s arrest.
        Over six to eight months, Posey County Officer Dan Gaffney attempted
to locate Davis, ultimately contacting the Federal Bureau of Investigation
(“FBI”) for assistance. FBI Agent Matthew Mohr (“Agent Mohr”) compared a
photograph in the arrest warrant with the photograph of a North Dakota
driver’s license for Mark Allen Davis. After comparing the photographs,
Agent Mohr and two other FBI agents went to the Fargo residence listed for
Mark Allen Davis. Davis opened the door to find the agents with their
weapons drawn. Agent Mohr identified himself as “FBI.” Transcript at 183.
Upon recognizing Davis as the person they were seeking, Agent Mohr entered
the residence. As the agents were detaining Davis, Agent Mohr said in an
inquiring tone, “William.” Tr. at 184. Davis responded, “I’m Mark. William
is my brother. This happens all the time.” Id. Despite Davis’s statement,
Agent Mohr remained convinced that the person detained was William Davis.
Davis agreed to go to the local sheriff’s office to be fingerprinted for
identification purposes. Because Davis had a broken leg, the agents were
assessing how to transport him. During that time, the agents told Davis that “it
would be easier on all of us if he would tell us the truth.” Tr. at 185. Shortly
thereafter, Davis said, “I’m Bill. My life is over.” Id.
        On November 4, 2005, Davis moved to sever the six counts into four
different trials, as follows: both counts related to J.C., both counts related to
J.H., the sole count for acts against R.H., and the count for failing to register as
a sex offender. Subsequently, Davis filed his Amended Motion for Severance,
seeking consideration of the six counts in three trials–a separate trial for the
sex-offender-registry count and a separate trial for the count alleging acts
against R.H. The State stipulated to severance of the count for Failure to
Register as a Sex Offender. As to severance of the count for acts against R.H.,
the trial court denied Davis’s motion, concluding that the five counts
constituted a common modus operandi.                Meanwhile, Davis moved
unsuccessfully to suppress evidence of the statements he made to Agent Mohr
in Fargo. Davis renewed both objections during the trial.
        The jury acquitted Davis on the counts alleging acts against J.H., but
found him guilty of Child Molesting as Class A and C felonies for acts against
J.C. and Child Molesting as a Class C felony for acts against R.H. The trial
court entered judgment of conviction on the three verdicts and sentenced Davis
to forty-five years imprisonment for the Class A felony conviction, seven years
imprisonment on the Class C felony conviction for acts against J.C., with those
sentences running concurrently, and seven years imprisonment on the Class C
felony conviction for acts against R.H., to run consecutively to the prior
sentences. Thus, Davis’s aggregate sentence is fifty-two years imprisonment.


                                         3
Davis v. State, No. 65A01-0605-CR-212, slip op. at 1-2 (Ind. Ct. App. May 2, 2007)

(footnotes omitted), trans. denied (“Davis I”).

       On August 28, 2008, Davis filed a pro se PCR petition, which the post-conviction

court denied on April 8, 2010. In his PCR petition, Davis had claimed, inter alia, that the

post-conviction court was biased against him and that he had received ineffective assistance

of trial and appellate counsels. On November 10, 2011, this court denied Davis’s claim that

the post-conviction court was biased and several of his contentions regarding his trial

counsel’s allegedly ineffective assistance. Davis v. State, 65A01-1004-PC-208 (Ind. Ct. App.

Nov. 10, 2011), trans. denied (“Davis II”). In Davis II, however, we noted that the post-

conviction court had failed to enter findings on several of Davis’s specific claims of

ineffective assistance of trial and appellate counsels and remanded for the entry of findings:

               The post-conviction court did not enter specific findings as to the
       following allegations of ineffective assistance of trial counsel raised by Davis:
       (1) trial counsel’s introduction and the admission of Defense Exhibits 1 and 2,
       which were J.C.’s depictions of the length and circumference of Davis’s penis;
       (2) trial counsel’s failure to interview the examining physician or consult a
       medical expert; (3) trial counsel’s failure to adequately investigate Cathy Scott
       as a witness; (4) trial counsel’s failure to object to the prosecutor’s argument
       regarding an internal exam; (5) trial counsel’s failure to protect Davis from an
       untrue inference of guilt based upon medical reports; (6) trial counsel’s failure
       to object to, as alleged by Davis, “a statement that could be construed as a
       comment upon Davis’ right not to testify,” Appellant’s Brief at 36; and (7) trial
       counsel’s failure to object to the prosecutor calling Davis a sex predator. The
       court also did not address Davis’s claim that his appellate counsel was
       ineffective for: (1) failing to raise issues of prosecutorial misconduct as
       fundamental error; and (2) failing to ensure that the voir dire was transcribed.

Id. slip op. at 7 (footnote omitted). On May 17, 2012, the PCR court issued specific findings

related to the nine claims identified in Davis II.


                                               4
                                     DISCUSSION

                                PCR Standard of Review

      Our standard for reviewing the denial of a PCR petition is well-settled:

              In reviewing the judgment of a post-conviction court, appellate courts
      consider only the evidence and reasonable inferences supporting its judgment.
      The post-conviction court is the sole judge of the evidence and the credibility
      of the witnesses. To prevail on appeal from denial of post-conviction relief,
      the petitioner must show that the evidence as a whole leads unerringly and
      unmistakably to a conclusion opposite to that reached by the post-conviction
      court.… Only where the evidence is without conflict and leads to but one
      conclusion, and the post-conviction court has reached the opposite conclusion,
      will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and quotations

omitted).

      This appeal concerns the seven claims of ineffective assistance of trial counsel and

two claims of ineffective assistance of appellate counsel addressed by the PCR court on

remand following Davis II. Each will be addressed in turn, with additional facts related as

necessary.

             I. Whether Davis Received Effective Assistance of Trial Counsel

      We review claims of ineffective assistance of counsel based upon the principles

enunciated in Strickland v. Washington, 466 U.S. 668 (1984):

      [A] claimant must demonstrate that counsel’s performance fell below an
      objective standard of reasonableness based on prevailing professional norms,
      and that the deficient performance resulted in prejudice. Prejudice occurs
      when the defendant demonstrates that “there is a reasonable probability that,
      but for counsel’s unprofessional errors, the result of the proceeding would
      have been different.” A reasonable probability arises when there is a
      “probability sufficient to undermine confidence in the outcome.”


                                            5
Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

Because an inability to satisfy either prong of this test is fatal to an ineffective assistance

claim, this court need not even evaluate counsel’s performance if the petitioner suffered no

prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

                      A. Inclusion of Defendant’s Exhibits 1 and 2

       Defendant’s Exhibits 1 and 2 are sketches, prepared by J.C. at a deposition with

assistance from William Gooden, Davis’s trial counsel. The sketches, which represented

J.C.’s estimates of the length and circumference of Davis’s erect penis, were introduced by

Gooden at trial. Davis essentially contends that his trial counsel was ineffective for

introducing exhibits that tended to show that J.C. had seen his erect penis before. While

introducing such evidence might constitute ineffective assistance in another context, it does

not in this case.

       J.C. testified at trial that he suffered rectal bleeding as a result of Davis’s anal

penetration of him. Gooden also questioned J.C. and reminded him that he had told

Detective Harpenau on July 28, 2004, that Davis had sodomized him within the past two or

three days. Yet, on July 28, 2004, J.C. received a medical examination which revealed “[n]o

tears, no obv[ious] stretching, [or] lesions” to his anus. Trial Ex. 2 p. 6. As highlighted in

his opening statement, Gooden emphasized the results of the medical examination, noting

that nothing in the results supported J.C.’s allegations. Gooden testified at the PCR hearing

that he introduced Exhibits 1 and 2 to show the size of Davis’s penis with hopes of appealing

to the jury’s “common sense” by arguing that J.C. could not have been anally penetrated with


                                              6
a penis of adult size and show no evidence of it two to three days later. PCR Tr. p. 11. Had

Gooden’s appeal to the jury’s “common sense” been successful, J.C.’s credibility would have

been undermined, perhaps resulting in Davis’s acquittal of charges related to J.C. Gooden’s

strategy, although ultimately unsuccessful, strikes us as entirely reasonable under the

circumstances. Davis did not receive ineffective assistance of trial counsel in this regard.

                             B. Failure to Call Medical Witness

       Davis also contends that Gooden was ineffective for failing to investigate the lack of

anal tearing and other injuries found in J.C.’s July 28, 2004, examination. Essentially,

Davis’s argument is that further investigation by Gooden would likely have revealed an

expert who would have testified that J.C.’s medical examination was inconsistent with his

account of molestation.       Gooden, however, testified that he had handled numerous

molestation cases over the years and that he did not want a doctor to testify regarding the

results of the medical examination because, in his experience, no doctor would have testified

that the results were inconsistent with J.C.’s accusations. After such testimony, Gooden

noted that any value that the examination had to Davis’s case would then “have been gone.”

PCR Tr. p. 11. Again, Gooden’s approach strikes us as reasonable, as a doctor testifying that

J.C.’s lack of injury was not inconsistent with his accusations would have undercut Gooden’s

argument. Davis’s claim is premised on the idea that a doctor could have been found who

would testify that J.C.’s lack of injuries rendered his account impossible or implausible, a

premise for which Davis offers no evidentiary support. Davis did not receive ineffective

assistance in this regard.


                                             7
                          C. Failure to Investigate Cathy Scott

       Davis claims that he believes that Yott orchestrated the charges against him and

influenced J.C. and J.H. to cooperate. Davis informed Gooden about Cathy Scott, a potential

witness who Davis claims would have corroborated this theory by testifying that Yott had

coached her children, had previously made false accusations regarding molestation of her

children, and was dissatisfied with her relationship with Davis. Scott had been interviewed

by an investigator with the Vanderburgh County Public Defender’s Office on November 16,

2005, approximately three months before Davis’s trial. Although Gooden interviewed Scott

“substantially” before Davis’s trial, he could not recall precisely when. PCR Tr. p. 296.

       As for the first of Davis’s points, Gooden testified that he interviewed Scott and that

she “emphatically denied” that Yott told her that she had told her children what to tell the

police. PCR Tr. p. 19. Moreover, as Gooden noted, evidence of any prior accusation of

sexual molestation of her children would have been inadmissible if it had been made by Yott,

as she was not the complaining victim in this case. See, e.g., Steward v. State, 636 N.E.2d

143, 148 (Ind. Ct. App. 1994), aff’d, 652 N.E.2d 490 (Ind. 1995) (“[E]vidence of prior false

accusations [of sexual abuse] made by the victim are admissible if they are either

‘demonstrably false’ or admitted by the victim to be false.”) (emphases added). Finally, the

only evidence in the record that Scott felt that Yott might have been angry with Davis comes

from her Vanderburgh County interview, and there is no indication that Gooden was even

aware that this interview had taken place (if, indeed, it had) when he spoke with Scott on the

telephone. Davis has failed to show that calling Scott to testify would have helped his case,


                                              8
and, as such, has not established that Gooden was ineffective for not doing so.

                D. Evidence of J.H.’s and J.C.’s Prior Sexual knowledge

       During his visit to the emergency room on July 28, 2004, J.H. told a physician that

J.C. had anally penetrated J.H. on many previous occasions. The medical report of J.H.’s

visit was admitted into evidence by stipulation of the parties, including the notation where the

doctor noted that J.H. “said [J.C.] had put his penis in [patient’s] bottom many times.”

State’s Trial Ex. p. 5. J.C. admitted in a December 2005 deposition that he had been sexually

active with J.H. before meeting Davis. After Gooden attempted to persuade the trial court

that he should have been able to cross-examine J.H. and J.C. regarding their sexual activity,

the trial court ruled only that Davis could ask J.C. and J.H. if they “knew, prior to meeting

[Davis], that men sometimes engage[d] in anal intercourse with other men or boys[.]” Direct

Appeal App. p. 325. The State and Davis subsequently entered into a stipulation “that [J.C.]

and [J.H.] both were aware prior to ever meeting William C. Davis that men sometimes had

anal sex with other men and with boys.” Trial Tr. p. 188.

       Davis argues that Gooden was ineffective for failing to take one of several other

approaches to the situation, including refusing the stipulation, seeking to confine any

reference to anal intercourse to allegations of such between Davis and J.C., and proposing an

alternate stipulation that J.C. and J.H. engaged in sexual intercourse, but that it occurred prior

to meeting Davis. We cannot conclude that Gooden was ineffective, in light of the

circumstances of the case.

       Both sides stipulated to the admission of the unredacted copy of J.H.’s medical report,


                                                9
which contained J.H.’s report that he and J.C. had repeatedly had anal sex. It was clearly in

Davis’s interest to allow this evidence in, to the extent that it might allow an inference that

J.C. and J.H. had an independent source for their knowledge of sexual conduct. The value to

Davis of this evidence would be significantly diminished, however, if the jury inferred that

the sexual conduct between J.C. and J.H. only occurred after they met Davis, as that would

tend to show that he was, in fact, the source of their sexual knowledge and perhaps even the

cause of the intercourse. In order to decrease the chances that the jury might make such an

inference, Gooden agreed to a stipulation that J.C. and J.H. had knowledge of anal

intercourse prior to meeting Davis.

       Gooden’s approach to this situation strikes us as reasonable, even if it is not the only

reasonable approach that he could have taken. Gooden took a calculated risk, stipulating to

evidence that J.C. and J.H. had engaged in anal intercourse while also stipulating that their

source of knowledge of anal intercourse was not Davis. While this second stipulation was

not as helpful to Davis as a stipulation that J.C. and J.H. had engaged in anal intercourse

before meeting Davis, there is no reason to believe that the State would have agreed to such a

stipulation had Gooden proposed it. Moreover, Davis was far better off than if Gooden had

simply refused the stipulation, as that would have left the record devoid of any evidence that

the source of J.C.’s and J.H.’s sexual knowledge was anything or anyone other than Davis.

Davis did not receive ineffective assistance of trial counsel in this regard.

                     E. Failure to Object to Prosecutor’s Argument

       During the State’s final argument, the prosecutor, in reference to J.C.’s medical


                                              10
examination, made the following statement: “Uh, this was an external exam. There was no

internal exam done. And if you’ll look at the records, clearly if there had been an internal

exam done, it would have been in the records.” Trial Tr. p. 225. Davis argues that Gooden

was ineffective for failing to object to the argument, claiming that the statement lacked a

basis in the evidence. Specifically, Davis contends that there is no basis in the record for

suggesting that an internal examination of J.C. was not done. The statement, however, is an

accurate assessment of the evidence and, as such, was not improper. The record of J.C.’s

July 28, 2004, medical examination, admitted as State’s Exhibit 2, clearly indicates that no

internal examination was done, and there is no evidence that an internal examination was

done on any other occasion. Gooden was not ineffective for failing to object to the

prosecutor’s comments.

    F. Failure to Object to Alleged Statement on Davis’s Decision not to Testify

       Davis contends that Gooden was ineffective for failing to object when the State

argued that its evidence was uncontradicted. Specifically, when referring to J.C.’s, J.H.’s,

and R.H.’s testimony, the prosecutor noted that “[y]ou didn’t hear any conflicting

testimony[.]” Trial Tr. p. 221. “The Fifth Amendment privilege against self-incrimination is

violated ‘when a prosecutor makes a statement that is subject to reasonable interpretation by

a jury as an invitation to draw an adverse inference from a defendant’s silence.’” Dumas v.

State, 803 N.E.2d 1113, 1118 (Ind. 2004) (quoting Moore v. State, 669 N.E.2d 733, 739 (Ind.

1996)). “However, statements by the prosecutor concerning the uncontradicted nature of the

State’s evidence do not violate the defendant’s Fifth Amendment rights.” Id. (citing


                                             11
Martinez v. State, 549 N.E.2d 1026, 1028 (Ind. 1990)). “Rather, comment on the lack of

defense evidence is proper so long as the State focuses on the absence of any evidence to

contradict the State’s evidence and not on the accused’s failure to testify.” Id. Here, the

prosecutor’s comment focused solely on the uncontradicted nature of the State’s evidence

and did not allude to Davis’s decision to remain silent. As such, it was permissible argument,

and Gooden was not ineffective for failing to object to it.

             G. Failure to Object to Statements Allegedly Vilifying Davis

       Davis contends that Gooden was ineffective for failing to object when the prosecutor,

during final argument, told the jury, “Bill Davis is a sexual predator.” Trial Tr. p. 248. “It is

proper for a prosecutor to argue both law and fact during final argument and propound

conclusions based upon his analysis of the evidence.” Ellison v. State, 717 N.E.2d 211, 213

(Ind. Ct. App. 1999) (citing Hollowell v. State, 707 N.E.2d 1014, 1024 (Ind. Ct. App. 1999)),

trans. denied. “However, Rule 3.4(e) of the Rules of Professional Conduct prohibits a

lawyer from stating a personal opinion about the guilt or innocence of an accused.” Id. Our

review of the prosecutor’s argument reveals no impropriety in this regard. As Davis seems to

concede, the prosecutor’s argument that Davis is a sexual predator was supported exclusively

by references to evidence and contained no statement relating a personal opinion of guilt.

Gooden was not ineffective for failing to object to the prosecutor’s statement on the

evidence.

       II. Whether Davis Received Ineffective Assistance of Appellate Counsel

       We review claims of ineffective assistance of appellate counsel using the same
       standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v.

                                               12
       State, 729 N.E.2d 102, 106 (Ind. 2000). The defendant must show that
       appellate counsel was deficient in his performance and that the deficiency
       resulted in prejudice. Id. Ineffective assistance claims at the appellate level of
       proceedings generally fall into three basic categories: (1) denial of access to
       an appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler
       v. State, 690 N.E.2d 188, 19-95 (Ind. 1997).

Fisher v. State, 810 N.E.2d 674, 676-77 (Ind. 2004). Davis’s claims fall into the second

category.

                   A. Failure to Raise Claims of Fundamental Error

       Davis contends that his appellate counsel Beth Folz was ineffective for failing to

argue that the following instances of alleged prosecutorial misconduct amounted to

fundamental error: (1) the prosecutor’s comment on the uncontradicted nature or the State’s

evidence, (2) the reference to no internal examination of J.C. having been performed, and (3)

the prosecutor’s argument that Davis is a sexual predator. Fundamental error is “error so

egregious that reversal of a criminal conviction is required even if no objection to the error is

registered at trial.” Hopkins v. State, 782 N.E.2d 988, 991 (Ind. 2003). The standard for

fundamental error is whether the error was so prejudicial to the rights of the defendant that a

fair trial was impossible. Krumm v. State, 793 N.E.2d 1170, 1181-82 (Ind. Ct. App. 2003).

In all three instances cited by Davis as constituting fundamental error, we have already

concluded that the State engaged in no impropriety. In other words, Davis has failed to

establish error, much less fundamental error. Folz was not ineffective for failing to raise

meritless claims of fundamental error.

  B. Folz’s Alleged Failure to Ensure that a Transcript of Voir Dire was Prepared

       Before trial, Davis moved for a change of venue, and a jury was selected from Monroe

                                               13
County. Although voir dire was recorded, it was not transcribed, despite the May 19, 2006,

notice of appeal requesting that it be. No issue related to jury selection was raised by Folz on

direct appeal. Davis now contends that Foltz was ineffective for failing to ensure that a

transcript was prepared because it deprived her of the ability to determine if any viable

claims existed related to pre-trial publicity or possible juror bias.

       Davis, however, cannot establish that he was prejudiced by Folz’s failure to ensure

that voir dire was transcribed. In an affidavit found to be credible by the post-conviction

court, Gooden averred that he specifically conducted individual voir dire on the issue of pre-

trial publicity. Gooden’s affidavit did not report any issues related to pre-trial publicity.

Also, Gooden averred that

       [d]uring individual voir dire, [Gooden] asked each juror if they or any member
       of their family had been the victim of a sex crime. Those who responded
       positively were questioned further about the facts and whether that previous
       experience would prejudice them in their jury service. Those who expressed
       concerns were excused for cause.

Direct Appeal Appellant’s App. p. 338. Davis points to his affidavit, in which he maintains

that Gooden did not conduct an adequate voir dire, but this is nothing more than a request to

reweigh the evidence, which we will not do. Davis has failed to establish ineffective

assistance of appellate counsel.

 III. Whether the Post-Conviction Court was Impermissibly Biased Against Davis

       Finally, Davis contends that the post-conviction court was impermissibly biased

against him. Davis argues that this bias is shown by the post-conviction court’s judicial

notice of the chronological case summary (“CCS”) and transcript from Posey Circuit Cause


                                              14
65C01-9108-CF-21 (“Cause No. 21”), Davis’s previous prosecution for Class B felony and

Class C felony child molesting.      Davis also contends that the post-conviction court

erroneously held him accountable for the court’s failure to maintain the audio recording of

voir dire.

       The law presumes that a judge is unbiased and unprejudiced. Smith v. State,
       770 N.E.2d 818, 823 (Ind. 2002). To rebut that presumption, a defendant must
       establish from the judge’s conduct actual bias or prejudice that places the
       defendant in jeopardy. Id. Such bias and prejudice exists only where there is
       an undisputed claim or where the judge expressed an opinion of the
       controversy over which the judge was presiding. Id. An adverse ruling alone
       is insufficient to show bias or prejudice. Flowers v. State, 738 N.E.2d 1051,
       1060 n.4 (Ind. 2000), reh’g denied. Rather, the record must show actual bias
       and prejudice against the defendant before a conviction will be reversed on the
       ground that the trial judge should have been disqualified. Id. at 1061.

Massey v. State, 803 N.E.2d 1133, 1138-39 (Ind. Ct. App. 2004).

                          A. Judicial Notice of Previous Case

       Davis seems to argue that the post-conviction court’s judicial notice of the materials

from Cause No. 21 calls its impartiality into question. Davis, however, while proceeding pro

se below, specifically asked the post-conviction court to examine the transcript of Cause No.

21 and agreed to the court’s suggestion that it examine the CCS as well. As such, any error

that the post-conviction court may have committed was invited by Davis. “A party may not

invite error, then later argue that the error supports reversal, because error invited by the

complaining party is not reversible error.” Kingery v. State, 659 N.E.2d 490, 494 (Ind.

1995). “Invited errors are not subject to appellate review.” Id.

                                       B. Voir Dire

       Davis contends that the post-conviction court held him accountable for the failure to

                                             15
be able to transcribe the voir dire proceedings. In its order, the post-conviction court found

that a previous order to transcribe the voir dire “could not be complied with due to the

circumstances” and noted that Davis did not seek to have voir dire prepared pursuant to

Appellate Rule 31.1 According to Davis, this is further evidence of the post-conviction

court’s bias against him. At most, however, this is merely an adverse ruling, which is

insufficient to show bias or prejudice. See Massey, 803 N.E.2d at 1139. There is no

indication whatsoever in the record that the post-conviction court was motivated in this

matter by bias or prejudice against Davis. Davis has failed to establish judicial bias.

        The judgment of the post-conviction court is affirmed.

NAJAM, J., and FRIEDLANDER, J., concur.




        1
           Appellate Rule 31 provides, in part, that “[i]f no Transcript of all or part of the evidence is
available, a party or the party’s attorney may prepare a verified statement of the evidence from the best
available sources, which may include the party’s or the attorney’s recollection.”

                                                     16
