MEMORANDUM DECISION
                                                               Jun 16 2015, 8:59 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana
Kathleen Cleary                                           Ellen H. Meilaender
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Antelmo Juarez,                                          June 16, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A03-1410-PC-350
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C. Shewmaker,
                                                         Judge
Appellee-Respondent
                                                         Case No. 20C01-1109-PC-20




Vaidik, Chief Judge.



                                      Case Summary


Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015     Page 1 of 20
[1]   Antelmo Juarez was convicted of murder and criminal gang activity and

      sentenced to a fifty-five-year aggregate sentence in 2007. This Court affirmed

      his convictions and sentence on direct appeal in 2010. Three years later Juarez

      filed an amended petition for post-conviction relief arguing that he received

      ineffective assistance of both trial and appellate counsel. The post-conviction

      court denied the petition, and Juarez now appeals the denial. Because Juarez

      has failed to show that the evidence as a whole leads unerringly and

      unmistakably to a conclusion opposite that reached by the post-conviction

      court, we affirm.



                            Facts and Procedural History
[2]   This Court set forth the facts as follows in Juarez’s direct appeal:

              On February 18, 2006, fifteen-year-old Juarez and his nineteen-year-old
              brother, Oscar Perez, were members of the Nortenos gang. That evening, as
              they were leaving their residence with some of their friends, Perez told Juarez
              to go back inside and get the gun, which was a SKS rifle. Juarez put the rifle
              into the back of a friend’s Dodge Durango. At some point during the
              evening, Perez moved the rifle to another vehicle, which was an Acura.
              The group later went to La Bamba, a club in Goshen. While they were in the
              club, the group of Nortenos got into a fight with a group of rival gang
              members, the Surenos. Security officers threw the Nortenos out of the club,
              and the Surenos followed them to the parking lot. The Surenos left the
              parking lot in a Chevrolet Malibu, while the Nortenos followed in the
              Durango and the Acura. The Durango pulled up beside the Malibu, and
              some Nortenos gang members shot paintballs at the Malibu. Juarez and
              Perez were passengers in the Acura, which was following the Malibu and the
              Durango.
              After seeing that the altercation was continuing, Perez told Juarez to “hand
              me the gun real quick,” and Juarez handed the rifle to Perez. Tr. p. 880. The
              Surenos became upset about the paintballs, and the driver of the Malibu
              rammed into the back of the Durango. Perez then rolled his window down

      Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 2 of 20
              and fired the rifle at the Malibu, killing fourteen-year-old Rogelio Reyes and
              wounding Saul Rodriguez.

      Juarez v. State, Cause No. 20A05-1006-CR-405 (Ind. Ct. App. Dec. 13, 2010),

      slip op. at 2-3, trans. denied.


[3]   Following the shooting, Juarez and his mother, Maria Botello, went to the

      Goshen police station, where they were both advised of Juarez’s Miranda rights.

      Botello and Juarez were given time to consult privately before they both signed

      a form waiving those rights. Juarez subsequently gave a police statement

      wherein he admitted that after the gang members in the Durango fired

      paintballs at the Malibu, he handed the rifle to his brother, Oscar, who fired

      multiple shots at the Malibu. The trial court admitted this statement into

      evidence at trial.


[4]   Also during trial, Juarez did not object when Oscar became belligerent while

      the State was confronting him about his conflicting statements regarding

      Juarez’s involvement in the offenses. In addition, the State impeached Oscar

      with the fact that he had been convicted of murder and attempted murder for

      his role in these events. At defense counsel’s request, the trial court instructed

      the jury that these references were admissible only for impeachment purposes.

      During closing argument, defense counsel did not object when the prosecutor

      made three additional references to these convictions.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015      Page 3 of 20
[5]   A jury convicted Juarez of murder and criminal gang activity as a Class D

      felony.1 The trial court sentenced him to a fifty-five-year executed sentence,

      which included concurrent sentences of fifty-five years for murder and one and

      one-half years for criminal gang activity. This Court affirmed the convictions

      and sentence on direct appeal. Juarez filed a pro se petition for post-conviction

      relief in September 2011 and an amended petition, by counsel, in August 2013.

      The post-conviction court held a bifurcated evidentiary hearing in October 2013

      and February 2014.


[6]   Evidence admitted at the post-conviction hearing revealed attorneys David

      Newman and Michael Tuszynski represented Juarez at trial. Newman testified

      that most of the participants in the offenses confessed, and the facts were not in

      dispute. Therefore, Newman explained, the best trial strategy was to argue that

      Juarez’s conduct had only been reckless and to seek a conviction for the lesser

      offense of reckless homicide. Newman further testified that he did not consider

      tendering an instruction on the defense of others because neither his trial

      strategy nor the facts of the case supported one.


[7]   Newman also testified that he did not consider filing a motion to suppress

      Juarez’s statement because Juarez’s mother, Botello, a native Spanish speaker,

      had access to an interpreter had she needed one. Goshen Police Department




      1
        Oscar was convicted of murder, Class A felony attempted murder, and Class D felony criminal gang
      activity. This Court affirmed his convictions, Perez v. State, 872 N.E.2d 208 (Ind. Ct. App. 2007), trans.
      denied, and the denial of his petition for post-conviction relief. Perez v. State, Cause No. 20A03-1212-PC-532
      (Ind. Ct. App. Aug. 28, 2013).

      Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015                Page 4 of 20
       Detective Mitchell Herschberger testified that he read the Miranda advisement

       of rights to both Juarez and Botello and then left the room so they could consult

       privately. Although Juarez’s sister testified at the post-conviction hearing that

       Botello only understood a few words of English, the evidence further revealed

       that forty-three-year-old Botello has lived in the United States for twenty-seven

       years. She has a driver’s license and is treated by English-speaking doctors.

       Botello did not testify at the hearing. Following the hearing, the post-

       conviction court denied Juarez’s petition in September 2014.


[8]    Juarez now appeals.



                                  Discussion and Decision
[9]    A defendant who has exhausted the direct-appeal process may challenge the

       correctness of his conviction and sentence by filing a post-conviction petition.

       Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005), reh’g denied. Post-

       conviction procedures do not provide an opportunity for a super appeal. Id.

       Rather, they create a narrow remedy for subsequent collateral challenges to

       convictions that must be based on grounds enumerated in the post-conviction

       rules. Id. Post-conviction proceedings are civil proceedings, and a defendant

       must establish his claims by a preponderance of the evidence. Id.


[10]   In reviewing the judgment of a post-conviction court, this Court considers only

       the evidence and reasonable inferences supporting its judgment. Hall v. State,

       849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is the sole judge of


       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 5 of 20
       the evidence and the credibility of witnesses. Id. 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. Id. Only where the evidence is without conflict

       and leads to but one conclusion, and the post-conviction court has reached the

       opposite conclusion, will the court’s findings or conclusions be disturbed as

       being contrary to law. Id. at 469.


[11]   Juarez argues that the post-conviction court erred in denying his petition

       because he received ineffective assistance of trial counsel. We review claims of

       ineffective assistance of trial counsel under the two-prong test established in

       Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show that

       trial counsel’s performance fell below an objective standard of reasonableness

       based on prevailing professional norms and that there is a reasonable

       probability that, but for counsel’s errors, the result of the proceeding would

       have been different. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App. 2001),

       trans. denied.


[12]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference on appeal. Wrinkles v. State, 749

       N.E.2d 1179, 1195 (Ind. 2001). Counsel’s performance is presumed effective,

       and a defendant must offer strong and convincing evidence to overcome this

       presumption. Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans.

       denied. We will not speculate as to what may or may not have been

       advantageous trial strategy as counsel should be given deference in choosing a

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 6 of 20
       trial strategy which, at the time and under the circumstances, seems best.

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


[13]   Juarez contends that his trial counsel was ineffective because counsel failed to:

       1) object to Preliminary and Final Instructions 2 and 3; 2) object to Final

       Instruction 6; 3) tender a defense-of-others instruction; 4) file a motion to

       suppress Juarez’s police statement; 5) object to Oscar’s testimony; and 6) object

       to the prosecutor’s closing argument. Juarez also argues that the cumulative

       effect of the alleged errors amounted to ineffective assistance of counsel.


                                       I. Instructional Errors
[14]   Juarez contends that trial court was ineffective for failing to object to

       Preliminary and Final Instructions 2 and 3 and Final Instruction 6 and for

       failing to tender a defense-of-others instruction.


                           A. Failure to Object to Instructions
[15]   In order to establish that counsel’s failure to object to a jury instruction was

       ineffective assistance of counsel, a defendant must first prove that a proper

       objection would have been sustained. Potter v. State, 684 N.E.2d 1127, 1132

       (Ind. 1997). A defendant must also prove that his failure to object was

       unreasonable and resulted in sufficient prejudice that there exists a reasonable

       probability the outcome would have been different. Id.


[16]   Preliminary and Final Instructions 2 and 3 provide in relevant part as follows:




       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 7 of 20
        In this case, the State of Indiana has charged the Defendant with
        Count I, Murder, a Felony . . . . The charge reads as follows:
        COUNT I:
        The undersigned affiant swears that on or about the 19th day of
        February, 2006, at the County of Elkhart and State of Indiana, one
        ANTELMO JUAREZ, did knowingly assist one Oscar Eduardo Oscar
        in the killing of another human being, to-wit: Rogelio Reyes, as the
        said Oscar Eduardo Oscar did shoot the said Rogelio Reyes with a
        dangerous and deadly weapon, to-wit: a firearm, and as a direct and
        proximate result of the shooting as aforesaid, the said Rogelio Reyes
        was fatally wounded and did languish and die in said County and
        State on the 19th day of February, 2006; all of which is contrary to the
        form of I.C. § 35-42-1-1 & 35-41-2-4; contrary to the form of the statute
        in such cases made and provided; and, against the peace and dignity of
        the State of Indiana. . . .
Appellant’s App. p. 69, 101 (Preliminary and Final Instructions 2).

        The crime of murder as alleged in Count I is defined by statute as
        follows:
        A person who knowingly aids, induces or causes another person in
        killing another human being commits murder, a felony.
        To convict the defendant, the State must have proved each of the
        following elements:
        The defendant:
        1. knowingly
        2. aided, induced, or caused
        3. the killing of
        4. another human being
        The State must prove that the defendant knowingly committed each
        element of this offense.
        If the State failed to prove each of these elements beyond a reasonable
        doubt, you should find the defendant not guilty.
        If the State did prove each of these elements beyond a reasonable
        doubt, you should find the defendant guilty of murder, a felony. . . .


Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 8 of 20
       Appellant’s App. p. 102 (Final Instruction 3).


[17]   Juarez argues that trial counsel should have objected to these instructions

       because “they failed to set forth essential elements of the charge.” Appellant’s

       Br. p. 9. Specifically, Juarez contends that the jury was not instructed that

       Juarez had to know or intend that Reyes be killed.


[18]   The Indiana Supreme Court addressed a similar argument in Taylor v. State, 840

       N.E.2d 324 (Ind. 2006), where Taylor also argued that trial counsel was

       ineffective for failing to object to an accomplice-liability instruction on the basis

       that it omitted an essential element of the offense. In Taylor, the defendant was

       charged both as a principal and an accomplice. The trial court instructed the

       jury as follows with regard to the accomplice liability murder charge:

               To sustain the charge of murder, the State must prove the following
               elements:
                                        *        *       *        *       *
               [T]hat KENYAN L. TAYLOR
               1. knowingly or intentionally aided, induced or caused another person
               to,
               2. kill,
               3. WALTER ANDERSON
               If you find from your consideration of all the evidence that each of the
               elements, or one set of circumstances has been proved beyond a
               reasonable doubt, then you should find the defendant guilty of
               Murder.
               However, if you find from your consideration of all the evidence that
               any of the elements, or one set of circumstances has not been proved
               beyond a reasonable doubt, then you should find the defendant not
               guilty of murder.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 9 of 20
       Id. at 334-35.


[19]   We agree with the State that the instructions in Taylor “laid out the elements

       exactly as did the instruction in this case: knowingly aiding, inducing, or

       causing the death of another person. . . . Taylor’s instruction says that the

       accomplice must knowingly aid, induce or cause another person to kill the

       victim; [Juarez’s] instruction says that the accomplice must knowingly aid,

       induce or cause the killing of the victim. They contain the same language, just

       slightly re-arranged . . . .” Appellee’s Br. p. 13, 14.


[20]   We further note that the jury in this case was instructed that the accomplice

       must act knowingly. If a level of culpability is required for the commission of

       an offense, it is required with respect to every material element of the prohibited

       conduct. See Ind. Code § 35-41-2-2(d). That requirement is more clear in the

       instruction in this case than it was in Taylor because the instruction in this case

       includes additional language that the State “must prove the defendant

       knowingly committed each element of this offense.” Appellant’s App. p. 102.

       The jury in this case was therefore specifically instructed that Juarez had to act

       with an awareness of the high probability that someone would be killed.


[21]   We further note that it is axiomatic that if a person knowingly aids another in

       the commission of an act, that person knows that the other will commit the act

       when the person aids him. The jury was correctly instructed, and trial counsel

       was not ineffective for failing to object to this instruction.


[22]   Final Instruction 6, an accomplice-liability instruction, provides as follows:

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 10 of 20
               A person is responsible for the acts of his accomplice as well as his
               own. The acts of one person are attributable to all who are knowingly
               acting together during the commission of a crime. Accordingly, the
               State need not prove, beyond a reasonable doubt, that the defendant
               personally, and acting by himself, committed all of the elements of the
               crime with which he is charged. However, the State must prove,
               beyond a reasonable doubt, that the defendant and another person or
               persons, acting together, committed all of the elements of the crime
               with which he is charged.
               It is not necessary for the State to show that a defendant was a party to
               a preconceived scheme; it must merely show concerted action or
               participation in an illegal act by the defendant.
               Although it is true that mere presence is not enough to show a person’s
               participation in a crime, such presence may be considered with all
               other evidence to determine guilt. Factors considered by the fact-
               finder to determine whether a defendant aided another in the
               commission of a crime include: (1) presence at the scene of the crime;
               (2) companionship with another engaged in the crime; (3) failure to
               oppose the commission of the crime; and (4) the course of conduct
               before, during, and after the offense which tends to show complicity.
               You are further instructed that accomplice liability applies to the
               contemplated offense and all acts that are a probable and natural
               consequence of the concerted action.
       Id. at 107.


[23]   Juarez specifically argues that trial counsel should have objected to the last

       sentence of the instruction. According to Juarez, this sentence created a

       mandatory presumption and shifted the burden of proof to him in violation of

       Sandstrom v. Montana, 442 U.S. 510 (1979). In Sandstrom, the United States

       Supreme Court held that the instruction, “the law presumes that a person

       intends the ordinary consequences of his voluntary acts,” impermissibly

       relieved the State of proving the defendant’s intent beyond a reasonable doubt.

       Id. at 524.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 11 of 20
[24]   However, Sandstrom is distinguishable for two reasons. First, Sandstrom was not

       an accomplice-liability case. Second, the instruction in this case does not

       include the word “presume,” and we fail to see how it creates a mandatory

       presumption of any kind. Further, and most important, the last sentence of this

       instruction is a correct statement of the law. See Wieland v. State, 736 N.E.2d

       1198, 1202 (Ind. 2000); Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014)

       (explaining that “accomplice liability applies to the contemplated offense and

       all acts that are a probable and natural consequence of the concerted action”).

       Trial counsel was not ineffective for failing to object to it.


                           B. Failure to Tender an Instruction
[25]   To prevail on his argument that trial counsel was ineffective for failing to tender

       a defense-of-others instruction, Juarez must prove that he was entitled to the

       defense and that he was prejudiced when the jury was not instructed on the

       defense. Potter, 684 N.E.2d at 1135.


[26]   At the post-conviction hearing, trial counsel testified that he did not tender a

       defense-of-others instruction because neither his trial strategy nor the facts of

       the case supported one. Specifically, trial counsel explained that his trial

       strategy was to argue that Juarez’s conduct had only been reckless and to seek a

       conviction for the lesser offense of reckless homicide.


[27]   The choice of defenses for trial is a matter of trial strategy, Overstreet v. State, 877

       N.E.2d 144, 154 (Ind. 2007), which will not be second-guessed unless it is so

       deficient or unreasonable as to fall outside of the objective standard of

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 12 of 20
       reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). This is true

       even when the strategic choices made ultimately prove detrimental or are

       subject to criticism. Wrinkles, 749 N.E.2d at 1195.


[28]   Here, the choice of a reckless-homicide defense does not fall outside of the

       objective standard of reasonableness. At the time of the offense in this case,

       Indiana Code section 35-42-1-5 provided that a “person who recklessly kills

       another human being commits reckless homicide, a Class C felony.” Ind. Code

       Ann. § 35-42-1-5 (West 2012). Reckless is defined as engaging “in the conduct

       in plain, conscious, and unjustifiable disregard of harm that might result and

       the disregard involves a substantial deviation from acceptable standards of

       conduct.” I.C. § 35-41-2-2. Juarez handed a rifle to Oscar during an altercation

       with a car containing rival gang members. It does not fall outside the objective

       standard of reasonableness to argue that firing a rifle out of a car at another car

       full of rival gang members is reckless behavior.


[29]   In addition, we agree with the State that “any claim of self-defense/defense of

       others was doomed to fail.” Appellee’s Br. p. 21. A valid claim of defense of

       oneself or another person is legal justification for an otherwise criminal act.

       Ind. Code § 35-41-3-2. To prevail on a claim of self-defense, the defendant

       must present evidence that he: 1) was in a place he had a right to be; 2) did not

       provoke, instigate, or participate willingly in the violence; and 3) had a

       reasonable fear of death or great bodily harm. Bryant v. State, 984 N.E.2d 240,

       250 (Ind. Ct. App. 2013). A person is not justified in using force if the person

       has entered into combat with another person or is the initial aggressor unless

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 13 of 20
       the person withdraws from the encounter and communicates to the other

       person the intent to do so and the other person nevertheless continues or

       threatens to continue the unlawful action. Ind. Code § 35-31-3-2(e). In

       addition, firing multiple shots undercuts a claim of self-defense. Randolph v.

       State, 755 N.E.2d 572, 576 (Ind. 2001).


[30]   Here, Juarez willingly participated in the violence by handing his brother a rifle

       during an altercation with rival gang members in another car. In addition,

       multiple shots were fired. Based on this evidence, trial counsel was not

       ineffective for failing to tender a defense-of-others instruction.


                       II. Failure to File a Motion to Suppress
[31]   Juarez next argues that trial counsel was ineffective for failing to file a motion

       to suppress Juarez’s police statement. Specifically, Juarez contends that his

       mother, Botello, who is not a native English speaker, did not knowingly and

       intelligently waive Juarez’s rights because the waiver form she signed was in

       English and she did not understand the English advisement.


[32]   The admissibility of a statement or confession is determined from a totality of

       the circumstances. Brown v. State, 485 N.E.2d 108, 112 (Ind. 1985).

       Specifically, we examine the circumstances surrounding the interrogation to

       determine whether the waiver was the product of a free and deliberate choice

       rather than intimidation, coercion, or deception, and whether the waiver was

       made with full awareness of the nature of the rights being abandoned and the



       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 14 of 20
       consequences of the decision to abandon them. D.M. v. State, 949 N.E.2d 327,

       339 (Ind. 2011).


[33]   Here, our review of the evidence reveals that Detective Herschberger read the

       Miranda advisement of rights to both Juarez and his mother and then left the

       room so they could consult privately. When he returned, Juarez and his

       mother waived Juarez’s rights, and Juarez told the detective that he handed the

       rifle to his brother when asked to do so. As to Botello’s English-speaking

       abilities, the evidence reveals that forty-three-year-old Botello has lived in the

       United States for twenty-seven years. She has a driver’s license and is treated

       by English-speaking doctors. Notably, she did not request an interpreter at the

       time of the advisements although there was one available, and she did not

       testify at the post-conviction hearing. Rather, it was Juarez’s sister who

       testified that Botello understands only a few words of English.


[34]   The post-conviction court concluded that Juarez failed to show that his mother

       did not understand the advisement and waiver of rights. Juarez has failed to

       show that the evidence as a whole leads unerringly and unmistakably to a

       conclusion opposite that reached by the post-conviction court.


                    III. Failure to Object to Oscar’s Testimony
[35]   Juarez also argues that defense counsel was ineffective because he failed to

       object to Oscar’s “outrageous behavior” during re-direct examination.

       Appellant’s Br. p. 19. Specifically, as the State was confronting Oscar about his

       conflicting statements regarding Juarez’s involvement in the crime, Oscar

       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 15 of 20
       became belligerent and “‘[went] off’ on the prosecutor in a soliloquy, liberally

       laced with the word ‘f***ing’ that lasted two pages,” Appellee’s Br. p. 22, and

       which provides in relevant part as follows:

               [O]nce I found out that I had killed somebody, man, which I didn’t
               know. . . . I wasn’t truthful completely. . . . You know what I’m
               saying, I was scared sh*tless, man. . . . Yeah, I, f***ing maybe didn’t
               say the truth completely, but I’m telling you the truth now. Self-
               preservation made me do that. I even f***ing tried to prove the blame
               on him. I tried to say that he f***ing shot him. Hell, yeah. I was
               f***ing scared. I wasn’t going to f***ing say the f***ing truth at the
               moment. . . . You trying to f***ing put this off on a 15 year old for
               something I did. What the f***, man? I f***ing shot that f***ing
               person. I did it. . . . I acted completely on my own. . . . You f***ing
               gave me 85 years for that. I’m paying the price for what I did. Now,
               you want to take my brother too? . . . Will it make you feel better for
               him to f***ing do 85 to 65 years too? Yeah. You’re a big guy. F***
               it. . . . Kiss this white dude’s a**, man, do it. That’s what you’re
               doing cause you ain’t doing justice. The justice has been served. I’m
               guilty of that sh*t.
       Tr. p. 901-02.


[36]   To establish ineffective assistance of counsel based on the failure to object, the

       petitioner must show that the objection would have been sustained if made and

       that he was prejudiced by counsel’s failure. Wrinkles, 749 N.E.2d at 1192.

       Here, Juarez failed both to set forth the precise objection that he believes

       counsel should have made and to demonstrate that it would have been

       sustained. Juarez’s cursory statement regarding Oscar’s outrageous behavior

       without supporting argument results in waiver of this issue. See Canaan v. State,

       653 N.E.2d 227, 232 (Ind. 1997).



       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 16 of 20
[37]   Waiver notwithstanding, Juarez has also failed to show prejudice. He admits

       that the sole authority he offers in support of his prejudice argument is “not

       squarely on point,” Appellant’s Br. p. 19, and we agree with the State that

       Oscar’s testimony that he was solely to blame for Reyes’s death, and his

       accusation that the State was attempting to “f***ing put this off on a 15 year old

       for something he did,” was more likely to help Juarez’s defense than hurt it. Tr.

       p. 902. Juarez has failed to establish that trial counsel was ineffective for failing

       to object to Oscar’s testimony.


           IV. Failure to Object during Closing Argument to the
              Prosecutor’s References to Oscar’s Convictions
[38]   Juarez further argues that trial counsel was ineffective for failing to object

       during closing argument to the prosecutor’s references to Oscar’s convictions.

       During trial, the State impeached Juarez’s brother, Oscar, with the fact that he

       had been convicted of murder and attempted murder for his role in these events.

       At defense counsel’s request, the trial court instructed the jury that these

       references were admissible only for impeachment purposes. During closing

       argument, defense counsel did not object when the prosecutor made three

       additional references to the convictions. Juarez argues that defense counsel was

       ineffective when he failed to object to these references because the “State was

       using the murder conviction as substantive evidence of guilt and not for the

       limited purpose of impeachment.” Appellant’s Br. p. 21.


[39]   In support of his argument, Juarez directs us to Humphrey v. State, 680 N.E.2d

       836 (Ind. 1997). However, the facts of Humphrey are distinguishable from those
       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 17 of 20
       before us. There, a witness told police that Humphrey admitted shooting

       someone who matched the victim’s description. At trial, however, the witness

       repudiated his statement, which the trial court nevertheless allowed into

       evidence. On appeal, Humphrey conceded the statement was admissible to

       impeach the witness’s credibility but argued that the jury was wrongly allowed

       to consider the statement as substantive evidence. The Indiana Supreme Court

       pointed out that defense counsel had neither requested a limiting instruction nor

       objected to the trial court’s “unlimiting” instruction telling the jurors they were

       free to consider a prior inconsistent statement both to impeach and as

       substantive evidence bearing on Humphrey’s guilt or innocence. Id. at 840.

       Here, however, the trial court gave a limiting instruction at defense counsel’s

       request. When a limiting instruction is given that certain evidence may be

       considered for only a particular purpose, the law presumes that the jury will

       follow the court’s admonition. Hernandez v. State, 785 N.E.2d 294, 303 (Ind. Ct.

       App. 2003). In addition, the jury in this case was not instructed with a

       misstatement of law.


[40]   We further note that the jury was instructed as follows that it had to assess

       Juarez’s guilt without regard to Oscar’s conviction:

               The fact that a co-defendant pleads guilty or is convicted is not
               evidence of the guilt of any other defendant, or that the crime charged
               in the information was committed. The guilt or innocence of the
               defendant still on trial must be determined by the jury solely by the
               evidence introduced in the trial in this case.
       Appellant’s App. p. 109. A jury is presumed to follow the trial court’s

       instructions. Laux v. State, 985 N.E.2d 739, 750 (Ind. Ct. App. 2013). We
       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 18 of 20
       therefore agree with the State that even if the jury used the prosecutor’s

       references to the crimes as substantive evidence that Oscar was guilty of

       murder, the instruction explained that the jury could not find Juarez guilty as

       an accomplice to murder simply because another jury had found Oscar guilty of

       murder. We further agree with the State that this instruction cures any

       potential prejudice caused by the prosecutor’s argument.


[41]   Last, at the post-conviction hearing, defense counsel explained that his failure

       to object to the references to Oscar’s convictions during closing argument was a

       trial strategy. Specifically, defense counsel explained that, in his experience,

       jurors tend to respond negatively when counsel objects during the State’s

       closing argument, and an attorney who makes such objections risks losing the

       credibility he has established with the jury during the course of the trial. We

       give deference to counsel’s trial strategy which, at the time, and under the

       circumstances, seems best and presume his performance is effective. Whitener,

       696 N.E.2d at 42. Juarez’s evidence does not overcome this presumption. See

       Smith, 822 N.E.2d at 202.


                                        V. Cumulative Error
[42]   Last, Juarez argues that the “cumulative effect of counsel’s errors deprived

       [him] of his . . . right to the effective assistance of counsel.” Appellant’s Br. p.

       24. However, the Indiana Supreme Court has explained that “[t]rial

       irregularities which standing alone do not amount to error do not gain the

       stature of reversible error when taken together.” Kubsch v. State, 934 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 20A03-1410-PC-350 | June 16, 2015   Page 19 of 20
       1138, 1154 (Ind. 2010) (citing Reaves v. State, 586 N.E.2d 847, 858 (Ind. 1992)).2

       We find no error, cumulative or otherwise, here.


[43]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       2
         Juarez also argues that he received ineffective assistance of appellate counsel because his appellate attorney
       failed to argue that trial counsel’s failure to challenge Preliminary and Final Instructions 2 and 3 as well as
       Final Instruction 6 constituted fundamental error. The standard of review for ineffective assistance of
       appellate counsel is the same as for trial counsel in that the defendant must show that appellate counsel was
       deficient in his performance and that the deficiency resulted in prejudice. Henley v. State, 881 N.E.2d 639,
       644 (Ind. 2008). Here, however, because we have already determined that Juarez’s trial counsel was not
       ineffective for failing to challenge these instructions, Juarez can show neither deficient performance nor
       resulting prejudice as a result of his appellate counsel’s failure to challenge them. See Davis v.State, 819
       N.E.2d 863, 872-73 (Ind. Ct. App. 2004), trans. denied.

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