MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 May 08 2020, 8:46 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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kenny Green                                              Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Evan M. Comer
                                                         Angela Sanchez
                                                         Caroline G. Templeton
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenny Green,                                             May 8, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1702-PC-494
        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.
                                                         49G06-1010-PC-80292



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020                     Page 1 of 12
[1]   Kenny Green (“Green”) is serving an aggregate forty-year sentence for his Class

      A felony rape and Class D felony auto theft convictions. The Marion Superior

      Court denied Kenny Green’s pro se petition for post-conviction relief of his rape

      conviction. Green appeals and argues that he received ineffective assistance of

      counsel at trial.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2011, Green was convicted of Class A felony rape and Class D felony auto

      theft. Green appealed his convictions and sentence, and the facts surrounding

      his offenses were discussed in his direct appeal:


              On May 18, 2009, P.E. met Green outside her apartment door
              and invited him inside because she was new to the apartment
              complex and wanted to meet other residents. P.E. had two other
              friends with her, and she and Green eventually drove P.E.’s
              friends to a nearby club. After P.E. and Green returned to P.E.’s
              apartment, they smoked crack cocaine. Green then left P.E.’s
              apartment but told her that he would be back.


              Hours later, Green returned and asked P.E. if he could use her
              phone. As P.E. began to retrieve her phone from her purse,
              Green came up behind her and began to strangle her with a belt
              from her robe. After he threatened to cut her, Green forced P.E.
              to perform oral sex on him. Green then gagged P.E. with an
              electrical cord, pulled off her clothing, and raped her.


              After raping P.E., Green took her car keys and cell phone from
              her purse. Green left P.E.'s apartment, and P.E. put on clothing
              and chased after him, but once outside, she saw Green driving

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 2 of 12
        away in her car. P.E. then called 911 to report the rape and auto
        theft. P.E. told the responding officer that a man named K.G.
        had raped her and stolen her car. The officer observed that P.E.
        had red marks on the outside of her lips that extended down to
        her chin, red marks on her neck, an abrasion on her elbow, and
        bruising on her arms.


        The officer sent P.E. to Methodist Hospital for a sexual assault
        examination. The forensic nurse examiner also observed the red
        marks near P.E.'s mouth, chin and neck, which she concluded
        were consistent with “marks made by strangulation by ligature.”
        The nurse examiner also observed injuries and abrasions to
        P.E.’s vagina, which were consistent with “blunt force trauma”
        and in the area of the vagina that is typically injured during a
        sexual assault.


        On October 19, 2010, Green was charged with Class A felony
        rape, Class A felony criminal deviate conduct, Class B felony
        robbery, Class D felony strangulation, Class D felony criminal
        confinement, and Class D felony auto theft. After a two-day jury
        trial, Green was found guilty of rape, strangulation, criminal
        confinement, and auto theft, but was acquitted of criminal
        deviate conduct and robbery.


        Green’s sentencing hearing was held on June 16, 2011. Although
        Green’s counsel did not argue for any mitigating circumstances,
        the trial court considered Green’s substance abuse as a mitigating
        factor. But the trial court determined that Green’s criminal
        history, consisting of several misdemeanor and felony
        convictions as well as probation revocations, outweighed that
        mitigating circumstance. The court then ordered Green to serve
        concurrent sentences of forty years for Class A felony rape and
        three years for Class D felony auto theft. The trial court declined
        to enter judgment on the strangulation and criminal confinement
        counts due to double jeopardy concerns. Green was also ordered


Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 3 of 12
               to register as a sex offender and found to be a sexually violent
               predator.


      Green v. State, 49A02-1107-CR-611, 2012 WL 986646 at *1 (Ind. Ct. App. Mar.

      22, 2012) (record citations omitted), trans. denied.


[4]   In 2012, Green filed a pro se petition for post-conviction relief, and he filed an

      amended petition in 2014. In his amended petition, he challenged the

      effectiveness of both his trial and appellate counsel. Bifurcated hearings were

      held on Green’s petition on November 19, 2015, and February 4, 2016. During

      the hearings, Green elicited testimony from his trial counsel concerning the

      victim’s inconsistent statements prior to trial and counsel’s advice regarding a

      guilty plea offer. The trial court concluded that Green’s trial counsel and

      appellate counsel were not ineffective and issued an order denying Green’s

      petition for post-conviction relief on January 24, 2017. 1 Green now appeals pro

      se challenging only the trial court’s conclusion that his trial counsel was not

      ineffective.


                                            Standard of Review
[5]   Our standard of review for claims of post-conviction court error is well settled:




      1
       Green’s appeal was initially dismissed by our court on October 4, 2017, because the transcript of the post-
      conviction hearing had not been filed, and Green had not filed a motion to compel the issuance of the Notice
      of Completion of Transcript within the time limits established by our appellate rules. One year later, our
      supreme court allowed Green to belatedly file a petition to transfer. On November 13, 2018, the court
      granted Green’s petition to transfer. In its order, the supreme court remanded Green’s appeal to our court
      with instructions to vacate our order of dismissal and to establish a briefing schedule for review of the appeal
      on its merits.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020                      Page 4 of 12
              A post-conviction petitioner bears the burden of establishing
              grounds for relief by a preponderance of the evidence. On appeal
              from the denial of post-conviction relief, the petitioner stands in
              the position of one appealing from a negative judgment. To
              prevail on appeal from the denial of post-conviction relief, the
              petitioner must show that the evidence as a whole leads
              unerringly and unmistakably to a conclusion opposite that
              reached by the post-conviction court.


              Where, as here, the post-conviction court makes findings of fact
              and conclusions of law in accordance with Indiana Post-
              Conviction Rule 1(6), we cannot affirm the judgment on any
              legal basis, but rather, must determine if the court’s findings are
              sufficient to support its judgment. Although we do not defer to
              the post-conviction court’s legal conclusions, we review the post-
              conviction court’s factual findings under a clearly erroneous
              standard. Accordingly, we will not reweigh the evidence or judge
              the credibility of witnesses, and we will consider only the
              probative evidence and reasonable inferences flowing therefrom
              that support the post-conviction court’s decision.


      Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (citations omitted)

      trans. denied.


                                     Discussion and Decision
[6]   “The criminal defendant’s right to counsel is foundational to our criminal

      justice system, giving it legitimacy and fairness.” Bobadilla v. State, 117 N.E.3d

      1272, 1279 (Ind. 2019). “The Sixth Amendment to the United States

      Constitution guarantees criminal defendants the right to counsel and mandates

      ‘that ‘the right to counsel is the right to the effective assistance of counsel.’’” Id.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 5 of 12
      (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

      Richardson, 397 U.S. 759, 771 n.14 (1970)).


[7]   A claim of ineffective assistance of trial counsel requires a showing that: (1)

      Green’s trial counsel’s performance was deficient by falling below an objective

      standard of reasonableness; and (2) that the deficient performance prejudiced

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

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

      See Strickland, 466 U.S. at 694. Failure to satisfy either of the two elements will

      cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). It is

      well-settled that “[i]solated mistakes, poor strategy, or bad tactics do not

      necessarily amount to ineffective assistance of counsel.” Herrera v. State, 679

      N.E.2d 1322, 1326 (Ind. 1997) (citations omitted).


[8]   If it is easier to dispose of an ineffectiveness claim on the lack of prejudice, then

      this is the course we should follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind.

      Ct. App. 2011); Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010).

      Prejudice occurs when a reasonable probability exists that, but for counsel’s

      errors, the result of the proceeding would have been different. Passwater v. State,

      989 N.E.2d 766, 770 (Ind. 2013).


[9]   Green raises several challenges to his trial counsel’s effectiveness. The

      fundamental issue during Green’s trial was whether the victim consented to

      sexual intercourse with Green. The bulk of Green’s arguments concerning his




      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 6 of 12
       trial counsel’s ineffectiveness revolve around counsel’s unsuccessful attempts to

       undermine the victim’s credibility.


[10]   First, we address Green’s argument that his trial counsel was ineffective for

       failing to impeach the victim with her prior inconsistent statements. Trial

       counsel was aware of the victim’s prior inconsistent statements, and during

       cross-examination, counsel questioned her about inconsistent statements she

       made to law enforcement. See Trial Tr. Vol. 1 pp. 192–207. During closing

       arguments, Green’s trial counsel relied on the victim’s inconsistent statements

       to attack her credibility in his defense of Green. Trial Tr. Vol. 2, pp. 301–05.


[11]   But trial counsel did not question the victim about inconsistencies between a

       pre-trial audiotaped statement and her trial testimony. These prior inconsistent

       statements that Green specifically addresses in his brief are minor, such as the

       victim’s confusion of the precise date of the offense.


[12]   Despite his efforts to impeach the victim, trial counsel found her testimony

       credible. P-C.R. Tr. pp. 28–29. Importantly, her trial testimony was

       corroborated by physical evidence found at the scene, by evidence of injuries

       suffered that were consistent with her version of the offense, and by the forensic

       nurse examiner’s testimony.


[13]   Green also claims that trial counsel should have impeached the victim with a

       prior rape allegation she made against another individual. The State filed a

       motion in limine concerning the prior rape allegation. Trial counsel did not

       object to the motion because there was no proper basis for doing so. Evidence

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 7 of 12
       concerning prior rape allegations is prohibited by Evidence Rule 412 and

       Indiana Code section 35-37-4-4. Green asserts that the prior rape allegation was

       false, but there is no evidence to support that claim. 2 The allegation did not

       result in criminal charges against the accused, but that does not affirmatively

       establish that the victim made a false accusation. Therefore, counsel was not

       ineffective for failing to impeach the victim with the prior rape allegation.


[14]   “The method of impeaching witnesses is a tactical decision and a matter of trial

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

       N.E.2d 1138, 1151 (Ind. 2010); see also McCary v. State, 761 N.E.2d 389, 392

       (Ind. 2002) (quotation and citation omitted) (“Few points of law are as clearly

       established as the principle that tactical or strategic decisions will not support a

       claim of ineffective assistance.”). Trial counsel attempted to impeach the victim

       and cast doubt on her credibility by questioning her about her prior inconsistent

       statements. Counsel did not question the victim about each prior inconsistent

       statement known to counsel. It was within counsel’s discretion to consider the

       effect of putting each minor prior inconsistent statement before the jury,

       especially given the strength of the evidence that corroborated the victim’s

       account of the rape.




       2
         A prior accusation of rape is admissible if (1) the victim has admitted that her prior accusation of rape is
       false; or (2) the victim’s prior accusation is demonstrably false. Graham v. State, 736 N.E.2d 822, 825 (Ind. Ct.
       App. 2000), trans. denied. “Prior accusations are demonstrably false where the victim has admitted the falsity
       of the charges or they have been disproved.” Candler v. State, 837 N.E.2d 1100, 1103 (Ind. Ct. App. 2005).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020                      Page 8 of 12
[15]   For all of these reasons, Green has not established that he was prejudiced by

       trial counsel’s failure to impeach the victim with her prior inconsistent

       statements or her prior rape allegation.


[16]   Next, Green argues that his trial counsel was ineffective for failing to

       communicate and consult with him. He complains that trial counsel only

       visited with him twice for less than forty minutes before his jury trial began, and

       that counsel failed to investigate impeachment evidence. Green claims that if

       trial counsel had spent more time communicating with him, counsel would

       have had a better understanding of Green’s version of the events and had more

       evidence to impeach the victim’s credibility. Appellant’s Br. at 20.


[17]   Specifically, Green contends counsel should have consulted with him on his

       claim that the victim lied when she testified that she did not buy the cocaine

       that she and Green smoked together. He asserts that if counsel had spent more

       time communicating with him prior to trial, they could have discussed and

       investigated evidence that would have undermined the victim’s credibility, such

       as obtaining the surveillance video from the bank machine where the victim

       withdrew money on the night of the offense.


[18]   There is no evidence to support Green’s claim that trial counsel failed to

       adequately communicate with him, but even if there was, Green has not

       established that the outcome of his trial would have been different if the jury

       had heard evidence that the victim lied about purchasing the cocaine. The




       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 9 of 12
       victim admitted that she and Green smoked cocaine together before Green

       returned to her apartment and raped her.


[19]   At the post-conviction hearing, trial counsel testified that he recalled meeting

       with Green to discuss the case and potential defenses, and he either played the

       victim’s audiotaped statement for Green or discussed the statement with him.

       P-C.-R. Tr. pp. 25–26. Green’s claim that if counsel had spent more time

       consulting with him there would have been “more evidence to impeach” the

       victim is not supported by any evidence. See Appellant’s Br. at 20. For all of

       these reasons, Green has not established that his trial counsel was ineffective for

       failing to adequately communicate and consult with him.


[20]   Third, Green argues that his trial counsel was ineffective for failing to provide

       him with copies of discovery prior to trial, including police reports, pictures and

       depositions. Trial counsel believed that Green had been provided discovery in

       the case by his first public defender. At the PCR hearing, counsel also testified

       that he generally did not provide defendants with discovery so that other

       inmates at the jail would not have access to the documents. P-C.R. Tr. pp. 8–9.

       Trial counsel stated that he did not recall Green requesting discovery from him,

       but that he would have provided copies of the documents if asked. Id. Even

       assuming Green requested discovery he did not receive, Green has not argued

       how counsel’s failure to provide discovery affected the outcome of his trial.

       Therefore, Green has not established that he was prejudiced because trial

       counsel did not provide him with copies of discovery.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 10 of 12
[21]   Fourth, Green contends that his trial counsel misadvised him during plea

       negotiations. Shortly before Green’s trial began, the State offered Green a plea

       agreement whereby Green would plead guilty to Class D felony sexual battery

       and Class D felony auto theft with concurrent sentences of three years for each

       conviction. The trial court advised Green that if he accepted the State’s offer, he

       would have 328 days remaining to serve in jail. The trial court asked if Green

       would like to consult with his trial counsel, and Green stated he did not need

       additional time and rejected the State’s offer. Trial Tr. pp. 350–51.


[22]   Green has not established that he received faulty advice during the plea

       negotiations. Green argues that he took counsel’s advice and rejected the plea

       offer and he references counsel’s “erroneous” advice. Appellant’s Br. at 25. But

       he has not offered any evidence establishing what counsel’s advice was aside

       from his own self-serving testimony at the post-conviction hearing, which the

       post-conviction court found was not credible. Appellant’s App. p. 20. And he

       rejected the State’s final plea offer after stating that he did not need to consult

       with his counsel. Trial Tr. pp. 350–51. For these reasons, we conclude that

       Green’s trial counsel was not ineffective for advising Green during plea

       negotiations with the State.


[23]   Finally, Green claims that trial counsel’s cumulative errors prejudiced him and

       subjected him to ineffective assistance of trial counsel. Green has not

       established that his trial counsel was ineffective, and therefore, he has not

       established that he is entitled to relief based on the cumulative effect of trial

       counsel’s alleged errors.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 11 of 12
                                                 Conclusion
[24]   Green has not established that he received ineffective assistance of counsel at

       trial. We therefore affirm the trial court’s order denying his petition for post-

       conviction relief.


[25]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020   Page 12 of 12
