MEMORANDUM DECISION                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Jul 19 2016, 8:15 am

this Memorandum Decision shall not be                                       CLERK
                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                  Court of Appeals
                                                                             and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Susan D. Rayl                                             Gregory F. Zoeller
Smith Rayl Law Office, LLC                                Attorney General of Indiana
Indianapolis, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jonathan Gibson,                                          July 19, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A05-1601-PC-129
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Respondent.                                      Judge
                                                          The Honorable Anne Flannelly,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G04-0808-PC-197584



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016             Page 1 of 20
                                           Case Summary
[1]   In August of 2008, Appellee-Respondent the State of Indiana (the “State”)

      charged Appellant-Petitioner Jonathan Gibson with Class B felony rape, Class

      B felony criminal deviate conduct, and Class D felony sexual battery. Gibson

      was found guilty following a two-day jury trial. He was subsequently sentenced

      to an aggregate term of twelve years, with six years executed and six years

      suspended to probation. Gibson appealed, challenging both the sufficiency of

      the evidence to sustain his convictions and the appropriateness of his sentence.

      On March 24, 2010, we affirmed Gibson’s convictions and sentence.


[2]   Gibson subsequently filed a petition seeking post-conviction relief (“PCR”),

      arguing that he suffered ineffective assistance of both trial and appellate

      counsel. Following an evidentiary hearing on Gibson’s petition, the post-

      conviction court denied Gibson’s PCR petition. On appeal, Gibson challenges

      the post-conviction court’s determination that he did not suffer ineffective

      assistance of trial counsel. Concluding that Gibson has failed to prove that he

      suffered ineffective assistance of trial counsel, we affirm.



                            Facts and Procedural History
[3]   Our memorandum decision in Gibson’s prior direct appeal, which was handed

      down on March 24, 2010, instructs us to the underlying facts and procedural

      history leading to this post-conviction appeal.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 2 of 20
        The evidence most favorable to the convictions reveals that
        Gibson was involved in a romantic relationship with C.V. from
        November 2007 to February 2008. In July 2008, C.V. saw
        Gibson at his place of work by chance, and they decided to start
        dating again. They had consensual sex once at the end of July.

        On the evening of Friday, August 1, 2008, C.V. and Gibson went
        out to dinner. Although C.V. had driven separately to the
        restaurant, she agreed to go to Gibson’s car to smoke a cigarette
        after dinner. Gibson then drove his car to a nearby, more
        secluded movie theater parking lot. The two began kissing, with
        C.V.’s consent. Then, however, Gibson began attempting to kiss
        C.V.’s breasts, and she said she did not want “to go any further.”
        Tr. p. 43. She explained that she was not comfortable with the
        public location, and that she wanted their relationship to proceed
        more slowly than it had the first time. Nevertheless, Gibson
        continued his advances, eventually removing her pants and
        inserting his fingers into her vagina. He then began rubbing her
        vagina with his penis, and finally had sexual intercourse with
        her. C.V. was unable to move during the sexual encounter
        because Gibson was placing his weight upon her. C.V. was
        crying during the incident and told Gibson to “please stop,” but
        he did not do so until he ejaculated. Id. at 47. Gibson then told
        C.V. he was sorry he had made her cry and that “it would never
        happen again.” Id. at 61. C.V. did not report the incident to
        police until Monday, August 4, 2008, when her supervisor at
        work noticed her crying and took her to a police station.

        On August 21, 2008, the State charged Gibson with Class B
        felony rape, Class B felony criminal deviate conduct, and Class
        D felony sexual battery. After a jury trial held on July 27-28,
        2009, Gibson was found guilty. However, the trial court did not
        enter a judgment of conviction for the sexual battery count. The
        trial court sentenced Gibson to twelve years for the rape and
        criminal deviate conduct convictions, suspended six years of each
        sentence, and ordered them served concurrently.


Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 3 of 20
      Gibson v. State, 49A02-0908-CR-820, *1 (Ind. Ct. App. March 24, 2010). On

      appeal, we affirmed Gibson’s convictions and sentence. Id. at 2-3.


[4]   On October 1, 2010, Gibson filed a pro-se PCR petition. Gibson, by counsel,

      filed an amended PCR petition on May 7, 2014. In this amended petition,

      Gibson claimed that he received ineffective assistance from both his trial and

      appellate counsel. On November 16, 2015, the post-conviction court issued an

      order denying Gibson’s petition.1 This belated appeal follows.



                                  Discussion and Decision
[5]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.


[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his




      1
        Gibson does not challenge the post-conviction court’s determination that he received effective assistance of
      appellate counsel.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016               Page 4 of 20
      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

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

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

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

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                         I. Ineffective Assistance of Counsel
[7]   The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

      668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

      must be whether counsel’s conduct so undermined the proper function of the

      adversarial process that the trial court cannot be relied on as having produced a

      just result.” Strickland, 466 U.S. at 686.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 5 of 20
[8]   A successful claim for ineffective assistance of counsel must satisfy two

      components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

      prong, the petitioner must establish that counsel’s performance was deficient by

      demonstrating that counsel’s representation “fell below an objective standard of

      reasonableness, committing errors so serious that the defendant did not have

      the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that

      even the finest, most experienced criminal defense attorneys may not agree on

      the ideal strategy or most effective way to represent a client, and therefore,

      under this prong, we will assume that counsel performed adequately and defer

      to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

      (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

      bad judgment do not necessarily render representation ineffective. Id.


[9]   Under the second prong, the petitioner must show that the deficient

      performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

      may show prejudice by demonstrating that there is “a reasonable probability

      (i.e. a probability sufficient to undermine confidence in the outcome) that, but

      for counsel’s errors, the result of the proceeding would have been different.” Id.

      A petitioner’s failure to satisfy either prong will cause the ineffective assistance

      of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

      “[a]lthough the two parts of the Strickland test are separate inquires, a claim

      may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

      (Ind. 2006) (citing Williams, 706 N.E.2d at 154).




      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 6 of 20
[10]   Gibson contends that his trial counsel provided ineffective assistance by (1)

       failing to present allegedly exculpatory evidence, (2) erroneously advising him

       that his prior convictions could potentially be used against him if he testified,

       and (3) failing to object to alleged prosecutorial misconduct. Alternatively,

       Gibson contends that even if none of the alleged errors, standing alone,

       necessitate a new trial, the cumulative effect of these alleged errors do. For its

       part, the State contends that Gibson’s trial counsel did not provide ineffective

       assistance in any regard.


              A. Failure to Present Allegedly Exculpatory Evidence
[11]   Gibson argues that his trial counsel provided ineffective assistance by failing to

       call an allegedly exculpatory witness to testify during trial. In the context of an

       ineffective assistance of counsel, claim, “‘a decision regarding what witnesses to

       call is a matter of trial strategy which an appellate court will not second-guess.’”

       Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009) (quoting Johnson v.

       State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), trans. denied). As is stated

       above, “although egregious errors may be grounds for reversal, we do not

       second-guess strategic decisions requiring reasonable professional judgment

       even if the strategy or tactic, in hindsight, did not best serve the defendant’s

       interests.” State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997).


[12]   In this case, the record reveals that prior to trial, trial counsel, who had

       extensive experience in criminal defense, engaged investigator Marty Perkins to

       examine and photograph “the vehicle that was alleged to be the crime scene to

       determine … physical limitations” relating to the “ability for the crime to occur
       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 7 of 20
       in the way the victim described it.” PCR Tr. p. 9. Because the actual vehicle in

       which the rape was alleged to have occurred was no longer available, Perkins

       attempted to find a “like” vehicle to photograph for “plausibility factors.” PCR

       Tr. p. 71. The State presented several photographs of the actual vehicle in

       which the rape was alleged to have occurred during trial. Although the front

       passenger’s seat was not photographed in the same position described by the

       victim, the photographs presented an accurate depiction of the size of the

       interior of the vehicle. Trial counsel urged the jury to consider whether, given

       the photographs of the vehicle, the victim’s account was “even physically

       possible.” Trial Tr. 201.


[13]   With respect to having Perkins available to testify at trial, trial counsel indicated

       that his intent was

               to have [Perkins] available, you know, you always kind of see
               how a trial goes and I did subpoena him and he recalls being
               present in the court office and ready to go, so I clearly intended
               to have him available and, and able to testify if I thought it was
               appropriate.


       PCR Tr. p. 20. After conclusion of the presentation of State’s case-in-chief and

       a brief conversation with Gibson, trial counsel decided that it was not necessary

       to have Perkins testify. Although he could not remember the exact reason for

       this decision during the post-conviction evidentiary hearing, trial counsel

       indicated as follows:


               Again … what I can say without any specific recollection is this.
               I had [Perkins] here and prepared with pictures, had he done his
       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 8 of 20
                job. I thought there was a potential that he could help. There
                must have been a reason … that had to have been an actual
                decision. There must have been something that occurred to
                cause me to (inaudible). I just don’t remember what that was.


       PCR Tr. p. 35.


[14]   Perkins stated during the post-conviction evidentiary hearing that trial counsel

       provided him with a reason for not calling him to testify.2 Perkins indicated

       that he questioned that decision because he thought his testimony regarding his

       photographs of the so-called “like” vehicle could potentially have been

       beneficial to the defense. Perkins, however, acknowledged that after

       completing his examination of the so-called “like” vehicle, he could not say that

       it was impossible for the sexual intercourse described by the victim to have

       taken place in the vehicle.


[15]   Gibson claims that his trial counsel rendered ineffective assistance by failing to

       call Perkins to testify at trial because Perkins’s testimony was critical to refuting

       the victim’s testimony that Gibson was able to force her over the top of the

       passenger seat, into the back seat, and, with his body partially between the

       reclined front and back seats of the vehicle, rape her. Perkins, however,

       acknowledged that upon completing his investigation, he could not testify that

       it was impossible for the sexual intercourse to have occurred as it was described

       by the victim. Thus, Perkins’s testimony, if offered, would not have refuted the



       2
           Perkins, however, did not relate what this reason was.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 9 of 20
       victim’s testimony. In addition, while trial counsel could not remember the

       exact reason why he decided not to call Perkins to testify at trial, he did

       remember that it was a tactical decision made after the State had fully presented

       its case-in-chief and was based on the events of and information presented

       during trial.


[16]   Further, Gibson has failed to convince us that the outcome of his trial would

       have been different if, through Perkins, the defense had introduced photographs

       of a similar vehicle when photographs of the actual vehicle in which the rape

       was alleged to have occurred were admitted into evidence. Despite the fact that

       the seat was not laid back in the admitted photographs as the victim described it

       was during the rape, the record demonstrates that the admitted photographs

       accurately depicted the size of the vehicle to the jury. Trial counsel implored

       the jury to review the photographs of the vehicle at issue and consider whether,

       given the size of the vehicle, the victim’s account was even physically possible.

       As such, we are unable to see how Gibson was prejudiced by trial counsel’s

       decision not to call Perkins to testify at trial.


[17]   Upon review we conclude that Gibson has failed to establish that his trial

       counsel committed an egregious error by failing to call Perkins to testify, and, as

       a result, we will not second-guess trial counsel’s tactical decision regarding

       what witnesses to call during trial. See Moore, 678 N.E.2d at 1261 (providing

       that while egregious error may amount to grounds for a reversal, we will not

       second-guess strategic tactical decisions made by counsel at trial). Gibson has

       also failed to demonstrate that he was prejudiced by trial counsel’s decision. See

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 10 of 20
       Reed, 866 N.E.2d at 769 (providing that one may show prejudice by

       demonstrating that there is a reasonable probability that but for the error, the

       result of the proceedings would have been different). We therefore further

       conclude that Gibson has failed to establish that his trial counsel’s performance

       was deficient or fell below an objective standard of reasonableness. See id.


              B. Allegedly Erroneous Advisement by Trial Counsel
[18]   Gibson also argues that his trial counsel provided ineffective assistance by

       erroneously advising him that his prior convictions could be used against him if

       he chose to testify. Gibson asserts that he wanted to testify so that he could

       present his claim that he did not rape the victim, but rather that he and the

       victim engaged in consensual sex. Gibson also asserts that he wished to give

       context to certain text messages he exchanged with the victim that were

       admitted into evidence.


[19]   With respect to his advice to Gibson, trial counsel testified during the PCR

       evidentiary hearing as follows:


               Q    And I certainly understand that, yes. All right. [Trial
               Counsel], do you have any recollection of discussing with Mr.
               Gibson whether or not he would testify in his own behalf?

               A     I am sure we did discuss it but I don’t have any
               independent recollection today.

               Q     Okay. Let me see if this refreshes your recollection. Um,
               would you have possibly told Mr. Gibson that you did not want
               him to testify because his prior criminal convictions could come
               out?

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 11 of 20
        A      If I thought that he had prior convictions that were going
        to come out, I’m certain I would have said that. If I thought he
        had prior convictions that could come out – and just the way you
        phrased the question I want to give you a complete answer – I
        would have said, I would have geared it more toward the
        possibility of (inaudible).

        Q     Okay, and at this point do you remember whether he had
        any [convictions that would come out automatically] or not?

        A      I don’t. I don’t have a recollection what his history was at
        the time of the trial.

        Q     Okay. So basically your answer is you don’t know what
        you might have told him or discussed as to why he should or
        should not testify.

        A      No. I know what I generally tell clients with criminal
        history and if they have criminal history that would definitely
        come in, I phrase it that way and if they could possibly open the
        door, I try to keep it phrased that way, you know, there’s still a
        risk even though it isn’t automatic.


PCR Tr. pp. 17-18. On cross-examination by the State trial counsel further

testified as follows:


        Q      Sure, okay. Regarding any conversation you would have
        had with Mr. Gibson about his, his right to testify at trial, you
        had mentioned on direct that you would have – if you thought he
        had priors, prior convictions that would come out either
        [automatically] or that could possibly come out, you said
        something like that, that you would have advised him on those.
        Can you describe – can you explain what you mean by the
        difference?


Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 12 of 20
        A      Certainly. I mean, there are some convictions, prior
        convictions that by rule can be used to impeach a person,
        (indecipherable) within ten years. They exist in a person’s
        criminal history and you know they’re going to be used, you
        have to incorporate it in the preparation to testify. You know
        they’re coming in. There are other types of convictions that may
        or may not come in. An old conviction and the person says I’ve
        never been in trouble before. Well, all of a sudden there at least
        could be a motion that that opens the door to the old conviction
        that you thought was not going to come in, so you have to
        (indecipherable) like that, things that may have opened the door
        and the threats that posed and how to one, avoid it and two, deal
        with it if, if it happens.

        Q     Okay, or even if your client has a newer conviction … he
        could still inadvertently say something on the stand that could
        open the door to that. Is that a fair statement?

        A        Yes, that was just one hypothetical I was using.

        Q        Okay.

        A        There are other ways you can open the door.

        Q     Okay, and so those are things that you as a matter of
        procedure would have discussed – would discuss with a client in
        the conversation regarding whether or not he’ll testify at trial.

        A     We would have gone over criminal history generally even
        outside the question of testifying or not and then also within the
        context of whether or not to testify and how it would impact
        (inaudible).


PCR Tr. pp. 30-32. Trial counsel also testified that while he could not

remember exactly what he told Gibson or rule out any possible misstatement of


Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 13 of 20
       the law regarding whether Gibson’s prior convictions could be used against him

       if he chose to testify during trial, he ultimately would have left the decision

       whether to testify up to Gibson.


[20]   Further, during the PCR evidentiary hearing, Gibson stated that the fact that

       the jury might be informed about his criminal record affected his decision not to

       testify. Gibson did not state that trial counsel told him that his prior

       convictions would definitely be used against him, only that they could possibly

       be used against him if he did. This is not an inaccurate advisement, as, under

       certain circumstances, Gibson’s criminal history could be brought to the jury’s

       attention. Gibson has therefore failed to prove that he suffered ineffective

       assistance because of receiving erroneous advice from his trial counsel.


           C. Failure to Object to Alleged Prosecutorial Misconduct
[21]   Gibson next argues that he suffered ineffective assistance of trial counsel

       because trial counsel failed to object to two alleged instances of prosecutorial

       misconduct. To establish ineffective assistance for trial counsel’s failure to

       object to alleged misconduct by opposing counsel, a petitioner must establish

       that the trial court would have sustained the objection had one been made and

       that he was prejudiced by the failure to object. Jones v. State, 847 N.E.2d 190,

       197-98 (Ind. Ct. App. 2006) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192

       (Ind. 2001), cert. denied, 535 U.S. 1019 (2002)).


               In reviewing a claim of prosecutorial misconduct, we determine
               (1) whether the prosecutor engaged in misconduct, and if so, (2)
               whether that misconduct, under all of the circumstances, placed

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 14 of 20
               the defendant in a position of grave peril to which he or she
               should not have been subjected. See Wisehart v. State, 693 N.E.2d
               23, 57 (Ind. 1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1338, 143
               L.Ed.2d 502 (1999); Wright v. State, 690 N.E.2d 1098, 1110 (Ind.
               1997), reh’g denied. The “gravity of peril” is measured by the
               “‘probable persuasive effect of the misconduct on the jury’s
               decision, not on the degree of impropriety of the conduct.’”
               Wisehart, 693 N.E.2d at 57 (quoting Kent v. State, 675 N.E.2d
               332, 335 (Ind. 1996) (citing in turn Bradley v. State, 649 N.E.2d
               100, 107-08 (Ind. 1995), reh’g denied.)).


       Coleman v. State, 750 N.E.2d 370, 374-75 (Ind. 2001).


                    1. Alleged Misconduct During Examination of the Victim

[22]   Gibson asserts that his trial counsel provided ineffective assistance by failing to

       object to alleged prosecutorial misconduct that occurred during the State’s

       direct examination of the victim. At the outset of the victim’s trial testimony,

       the deputy prosecutor informed the victim that she had “to use [her] outside

       voice” while testifying and that there was “water and tissue up there if [she]

       need[ed] it.” Trial Tr. p. 19. At another point, the deputy prosecutor asked the

       victim if she was nervous. The deputy prosecutor also asked the victim at

       another point if she needed a drink of water and told her to “go ahead” and

       take a drink when she indicated that she did. Trial Tr. p. 41. These three

       instances took place over the course of what was a lengthy examination of the

       victim.


[23]   We must note that Gibson does not point to any State or local trial rule which

       would establish that the deputy prosecutor’s behavior in this regard was


       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 15 of 20
       improper, and we are aware of no such rule. Gibson merely claims that the

       deputy prosecutor’s statements implied to the jury that the victim could not get

       through her testimony without crying or having water to drink. He further

       claims that by showing some general level of concern for the victim, the deputy

       prosecutor committed misconduct by conducting himself toward the victim in a

       manner that might appear overly solicitous and which might garner sympathy

       for the victim.


[24]   For his part, trial counsel indicated during the PCR evidentiary hearing that he

       did not consider objecting to these statements by the deputy prosecutor because

       the victim, who was testifying about an alleged sexual assault, was “obviously

       teary eyed” and “emotional.” PCR Tr. p. 14. When asked if “there [would

       have been] anything to be gained by objecting,” trial counsel indicated that

       “[i]t’s a delicate call, especially with sex crimes.” PCR Tr. p. 26. Trial counsel

       further indicated that while he generally would not hesitate to object or request

       permission to approach the trial court to discuss what he believed might be

       inappropriate comments by opposing counsel, he generally would not object if

       he did not believe there was a basis for raising the objection.


[25]   We cannot see how alerting a visibly upset witness who is being subjected to a

       lengthy examination about a sensitive subject matter that there are tissues and

       water available to her and offering to pause while she takes a drink is improper

       or amounts to misconduct. Further, given the delicate nature of the victim’s

       testimony, trial counsel’s decision not to object to the deputy prosecutor’s

       display of concern for the victim seems to be a sound tactical decision

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 16 of 20
       considering the potential negative impact that could come from appearing

       uncaring or the perception of being too hard on the visibly upset witness.

       Gibson has failed to show that any objection raised by trial counsel with regard

       to the challenged statements would have been sustained. Gibson has also failed

       to establish that the challenged statements placed him in great peril or that he

       was prejudiced by the challenged statements. Gibson, therefore, has failed to

       establish prosecutorial misconduct, much less that his trial counsel provided

       him with ineffective assistance by failing to object to the alleged misconduct.


                    2. Alleged Misconduct During Rebuttal Closing Argument

[26]   Gibson also asserts that his trial counsel provided ineffective assistance by

       failing to object to alleged prosecutorial misconduct that occurred during the

       State’s rebuttal closing argument. In raising this assertion, Gibson claims that

       his trial counsel should have objected to a single statement made by the deputy

       prosecutor which he claims improperly impugned trial counsel.


[27]   At the outset of his rebuttal closing argument, the deputy prosecutor stated “I’ll

       start with the fact that [trial counsel] has done, this is a first class trial. What he

       has done is he has used what he claims are inconsistencies [in the victim’s

       testimony] and he calls them stories.” Trial Tr. p. 205. The deputy prosecutor

       then went on to outline the reasons why he believed that (1) the alleged

       inconsistencies in the victim’s testimony did not indicate that she was being

       untruthful and (2) he had proved beyond a reasonable doubt that Gibson had

       committed the charged crimes. The deputy prosecutor made no other reference

       to trial counsel during the remainder of his rebuttal closing argument.
       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 17 of 20
[28]   During the PCR evidentiary hearing, trial counsel stated that he does not

       believe he considered objecting to the deputy prosecutor’s statement. When

       asked why, trial counsel acknowledged that it was possible that he might not

       have heard the deputy prosecutor’s comment because it occurred in the first

       sentence of the deputy prosecutor’s rebuttal closing argument when he might

       have been getting settled after giving his closing argument. In addition, trial

       counsel indicated that in making the tactical decision whether to object to a

       statement by opposing counsel, he generally considers numerous factors

       including whether the statement at issue is repetitious or a single statement,

       how opposing counsel is standing in front of the jury, opposing counsel’s

       demeanor in addressing the jury or the defendant, their facial expressions and

       gestures, emphasis on certain words, and the visible impact on the jury. He

       also indicated that he considers the potential impact that bringing the statement

       to the jury’s attention by objecting may have on the jury.


[29]   On its face, the complained of statement by the deputy prosecutor does not

       seem improper. It seems unlikely that the comment somehow impugned trial

       counsel by implying to the jury that he was a “slick lawyer.” Appellant’s Br. p.

       19. Rather, it seems more likely that the comment would imply that trial

       counsel had done a good job representing his client’s interests as the deputy

       prosecutor felt it necessary to explain why he believed trial counsel’s position

       was incorrect.


[30]   As was the case above, Gibson has failed to show that any objection raised by

       trial counsel with regard to the challenged statement would have been

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 18 of 20
       sustained. Gibson has also failed to establish that the challenged statement

       placed him in great peril or that he was prejudiced by the challenged statement.

       Gibson, therefore, has again failed to establish prosecutorial misconduct, much

       less that his trial counsel provided him with ineffective assistance by failing to

       object to the alleged misconduct.


                                        D. Cumulative Effect
[31]   Gibson last argues that even if none of the above-discussed alleged instances of

       ineffective assistance alone warranted a new trial, the cumulative effect of these

       alleged instances of ineffective assistance warranted a new trial. However,

       having concluded that Gibson failed to establish that he suffered ineffective

       assistance in any of the above-complained of regards, we disagree.



                                               Conclusion
[32]   In sum, we conclude that Gibson has failed to establish that his trial counsel

       provided ineffective assistance by (1) failing to present allegedly exculpatory

       evidence, (2) erroneously advising him that his prior convictions could

       potentially be used against him if he testified, or (3) failing to object to alleged

       prosecutorial misconduct. Gibson has also failed to establish that the

       cumulative effect of the alleged errors warranted a new trial. We therefore

       affirm the judgment of the post-conviction court.


[33]   The judgment of the post-conviction court is affirmed.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-129 | July 19, 2016   Page 19 of 20
Bailey, J., and Altice, J., concur.




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