MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any
                                                                            Jan 31 2019, 7:34 am
court except for the purpose of establishing
the defense of res judicata, collateral                                            CLERK
                                                                             Indiana Supreme Court
estoppel, or the law of the case.                                               Court of Appeals
                                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Jay M. Lee                                               Laura R. Anderson
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Garrick Twiford, Jr.,                                    January 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-1876
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         20D03-1605-PC-26
                                                         20D03-1004-FA-21



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019                     Page 1 of 19
[1]   Garrick Twiford, Jr. appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Twiford raises two issues for our review, which we

      restate as follows:


              1.       Whether the post-conviction court erred when it
                       concluded that Twiford was not denied the effective
                       assistance of trial counsel.

              2.       Whether the court erred when it concluded that he was not
                       denied the effective assistance of appellate counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   From June to September 2009, Twiford lived with his sister and her husband

      and children, including then six-year-old B.B. On December 29, B.B.’s mother

      and step-father became concerned about B.B. after they had discovered that she

      was doing “inappropriate” things with her brother. Trial Tr. at 65. As a result

      of B.B.’s actions with her brother, B.B.’s mother told B.B. about the boundaries

      of the body, which B.B.’s mother called the “bubble.” Id. At that point, B.B.

      told her mother and step-father that Twiford had “broke[n] her bubble.” Id. at

      52. B.B.’s parents called the police. The next day, police officers interviewed

      B.B. Based on the statements that B.B. had made to officers during her

      interview, the State charged Twiford with two counts of child molesting, as

      Class A felonies (Counts I and II), and one count of child molesting, as a Class

      C felony (Count III), for acts that had allegedly occurred between June 1 and

      September 30.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 2 of 19
[4]   The trial court held a jury trial on March 19 and 20, 2012. During the trial, the

      State called B.B. as a witness. B.B. testified that Twiford had touched her “in

      the wrong spots,” where she “go[es] potty.” Id. at 102. B.B. further testified

      that Twiford touched her “private spot” with his hands in “wrong ways” and

      that it “hurt” her. Id. at 104. B.B. also testified that Twiford’s “wee wee” had

      touched her private area. Id. at 103. She then testified that Twiford “tried to

      put his private part” in hers more than five times. Id.


[5]   Additionally, B.B. testified that, on one occasion while Twiford lived with

      them, Twiford had carried her downstairs to the couch and “took [her] clothes

      off.” Id. at 105. She then stated that Twiford had “tried to have S-E-X with

      [her].” Id. at 106. B.B. also testified that Twiford had taken her hand and

      “made [her] shake his private part.” Id. at 108.


[6]   B.B. also testified that, once, while in the bathroom, Twiford’s “wee wee”

      touched “the hole part” of her bottom where she “go[es] P-O-O-P” and that it

      was “super uncomfortable.” Id. at 110. She then testified that Twiford had put

      “[w]hite, clear stuff” into her “bottom.” Id. at 139. B.B. testified that Twiford

      had touched her private part with his hand “like ten times,” and that, in total,

      Twiford had touched her “[t]wenty times.” Id. at 108, 113. During the State’s

      direct examination of B.B., the State asked B.B. about the first time that

      Twiford had touched her inappropriately. B.B. stated that, while they lived in a




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 3 of 19
      trailer prior to moving to the house,1 Twiford had made B.B. “suck on his

      private part.” Id. at 116.


[7]   Twiford did not object to B.B.’s testimony. After both parties had questioned

      B.B., the jury wrote down questions that they had for her. At that time, the

      court recessed in order to hear counsel’s arguments regarding the jury’s

      questions.


[8]   During the recess outside the presence of the jury, Twiford’s trial counsel

      requested a mistrial based on B.B.’s testimony regarding the possible

      molestation that had occurred in the trailer at least one year prior to the date

      range alleged in the charging information. The State objected, and the trial

      court denied Twiford’s motion. Twiford’s counsel then asked for a limiting

      instruction that would instruct the jury that it “may only decide the facts on the

      dates that are alleged in the charging Information.” Id. at 129. The court then

      informed Twiford’s counsel that the dates in the information do not control

      unless the defendant has asserted an alibi defense, which was not the case here.


[9]   At that point, the court offered to strike the portion of B.B.’s testimony that

      related to the events that had allegedly occurred in the trailer. Twiford’s

      counsel agreed, but the State objected and asserted that B.B.’s testimony fell

      under an exception to Indiana Evidence Rule 404(b), which exception allowed




      1
        It is not clear when B.B. and her family lived in the trailer. But B.B. testified that they had lived in the
      trailer while her mother was pregnant with twins, who were five years old on the date of the trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019                      Page 4 of 19
       evidence of prior bad acts to be admitted if that evidence showed a common

       plan or scheme. The court reversed its decision and did not strike the

       testimony. Twiford’s counsel then stated that a limiting instruction that

       informed the jury that it could only use B.B.’s testimony about the incident in

       the trailer to show a common plan or scheme “would be the only suitable

       alternative” to striking the testimony. Id. Twiford’s counsel then specifically

       requested that the court inform the jury that it could only use the trailer

       evidence to show a common plan or scheme instead of as substantive evidence

       of the allegations at issue.


[10]   After the jury returned, the court admonished the jury as follows:


               I am hereby admonishing you that you may consider evidence
               concerning prior sexual contact between the defendant and the
               alleged victim which occurred at the trailer only insofar as it
               demonstrates a plan to exploit and sexually abuse the child and
               not as independent evidence of a separate crime.


       Id. at 138.


[11]   At the conclusion of the evidence, the court entered judgment in favor of

       Twiford on Count II. The trial court then submitted Counts I and III to the

       jury. At that time, the trial court provided the final instructions to the jury.

       Among the instructions was final instruction #13, which provided: “The State

       is not required to prove that the crime charged was committed . . . on the

       particular date or during a particular time period as alleged in the information.”

       Id. at 200. The jury found Twiford guilty of both Counts I and III, and the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 5 of 19
       court entered judgment of conviction on those counts. Thereafter, the court

       sentenced Twiford to an aggregate term of forty years in the Department of

       Correction.


[12]   On direct appeal, Twiford argued only that the State did not present sufficient

       evidence to support his conviction for child molesting, as a Class A felony.

       Twiford v. State, No. 20A04-1205-CR-284, 2013 WL 182745, at *1 (Ind. Ct.

       App. Jan. 13, 2013). But finding that the evidence was sufficient, this Court

       affirmed his conviction. Id.


[13]   On June 30, 2017, Twiford filed an amended petition for post-conviction relief

       in which he alleged that he had been denied the effective assistance of trial

       counsel because his trial counsel: failed to object to B.B.’s testimony regarding

       the possible molestation that had occurred at the trailer, which testimony

       permitted the jury to draw a forbidden inference of his guilt; requested an

       admonishment that linked the prior bad act to the allegations at issue; and

       failed to object to a jury instruction that reinforced the forbidden inference of

       the prior bad act. Twiford also alleged in his petition that he had been denied

       the effective assistance of appellate counsel because his appellate counsel had

       raised only the single issue of sufficiency of the evidence on appeal instead of

       the admissibility of B.B.’s testimony regarding the prior bad act that had

       occurred in the trailer. Following an evidentiary hearing at which Twiford’s




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 6 of 19
       trial counsel testified,2 the post-conviction court entered findings of fact and

       conclusions of law denying Twiford’s petition for relief. This appeal ensued.


                                           Discussion and Decision
[14]   Twiford appeals the post-conviction court’s denial of his petition for post-

       conviction relief. Our standard of review is clear:


                  The petitioner in a post-conviction proceeding bears the burden
                  of establishing grounds for relief by a preponderance of the
                  evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
                  (citations omitted). When appealing the denial of post-
                  conviction relief, the petitioner stands in the position of one
                  appealing from a negative judgment. Id. To prevail on appeal
                  from the denial of post-conviction relief, a petitioner must show
                  that the evidence as a whole leads unerringly and unmistakably
                  to a conclusion opposite that reached by the post-conviction
                  court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
                  Further, the post-conviction court in this case made findings of
                  fact and conclusions of law in accordance with Indiana Post-
                  Conviction Rule 1(6). Although we do not defer to the post-
                  conviction court’s legal conclusions, “[a] post-conviction court’s
                  findings and judgment will be reversed only upon a showing of
                  clear error—that which leaves us with a definite and firm
                  conviction that a mistake has been made.” Ben-Yisrayl v. State,
                  729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


       Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

       Campbell).




       2
           Twiford’s appellate counsel did not testify at the hearing.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 7 of 19
                               Issue One: Effectiveness of Trial Counsel

[15]   Twiford first contends that he received ineffective assistance from his trial

       counsel.


               When evaluating an ineffective assistance of counsel claim, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). See Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
               prong, “the defendant must show deficient performance:
               representation that fell below an objective standard of
               reasonableness, committing errors so serious that the defendant
               did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
               second prong, “the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Id. at 274. The “[f]ailure to satisfy either prong will cause the claim to fail.”

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002). And “most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone.” Id.


               There is a strong presumption that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. Counsel is afforded
               considerable discretion in choosing strategy and tactics, and these
               decisions are entitled to deferential review. Isolated mistakes,
               poor strategy, inexperience, and instances of bad judgment do
               not necessarily render representation ineffective.


       Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 8 of 19
[16]   Twiford specifically alleges that his trial counsel committed three errors,

       namely: his counsel failed to object to B.B.’s testimony regarding the acts that

       had occurred in the trailer, which testimony Twiford contends allowed the jury

       to make a forbidden inference of his guilt; his counsel requested a jury

       admonishment that specifically linked the trailer evidence to the allegations at

       issue; and his counsel failed to object to a jury instruction that reinforced the

       forbidden inference of the prior bad act. We address each contention in turn.


                                   Failure to Object to B.B.’s Testimony

[17]   Twiford first contends that his trial counsel’s performance was deficient because

       counsel did not object to B.B.’s testimony that Twiford had made her “suck on

       his private part.” Trial Tr. at 116. Twiford asserts that his trial counsel should

       have objected to B.B.’s testimony because that testimony was inadmissible

       under Indiana Evidence Rule 404(b)(1), which provides that “[e]vidence of a

       crime, wrong, or other act is not admissible to prove a person’s character in

       order to show that on a particular occasion, the person acted in accordance

       with the character.”


[18]   Twiford specifically contends that B.B.’s testimony regarding the act that had

       occurred while at the trailer was inadmissible evidence of a prior bad act

       because the alleged incident had occurred over one year prior to the date range

       alleged in the charging information. He also asserts that the testimony was not

       admissible as an exception under Evidence Rule 404(b)(2), which allows

       otherwise inadmissible evidence to be admitted if it demonstrates a common

       scheme or plan, because his identity was not at issue and because “too great a
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 9 of 19
       span of time had elapsed” between the trailer incident and the incidents in the

       timeframe alleged. Appellant’s Br. at 18.


[19]   But we need not decide whether B.B.’s testimony was inadmissible under

       Indiana Evidence Rule 404(b). Even if Twiford is correct that his trial counsel

       could have raised a successful contemporaneous objection to B.B.’s testimony,

       his trial counsel’s testimony at the post-conviction hearing establishes that he

       made a strategic decision not to object. Twiford’s trial counsel testified that he

       generally objects to testimony from a child “more delicately” and “where

       there’s an actual break” in the testimony “so that it doesn’t look like I’m

       jumping up and trying to hide something that would, ultimately, be bad for my

       client.” P-C. Tr. at 13. Twiford’s counsel further testified that he did not object

       to B.B.’s statements at the time she made them but, rather, waited until there

       was a break in her testimony so that the jury did not view his actions as

       “bullying” B.B. or otherwise convict Twiford “based on the way [the jury]

       feel[s] about me or the way that I am bullying a child.” Id. at 20. Additionally,

       Twiford’s counsel testified that he lodged his objection outside the presence of

       the jury because objecting in front of the jury is “like re-ringing the bell over and

       over.” Id. at 31. Instead of objecting, Twiford’s trial counsel took the first

       opportunity when there was a natural break in B.B.’s testimony to request a




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 10 of 19
       mistrial outside the presence of the jury, which motion the trial court

       considered but ultimately denied.3


[20]   Based on Twiford’s trial counsel’s testimony at the post-conviction hearing, it is

       clear that Twiford’s counsel made a strategic decision not to object to B.B.’s

       testimony because he was concerned that the jury would disapprove of his

       actions and impute their dislike of him onto Twiford and because he did not

       want to “re-ring[]” the bell and highlight B.B.’s testimony to the jury. We

       cannot say that trial counsel’s strategic decision not to object in the presence of

       the jury but, instead, seek a mistrial outside the presence of the jury was “‘so

       deficient or unreasonable as to fall outside the objective standard of

       reasonableness.’” State v. Miller, 771 N.E.2d 1284, 1288 (Ind. Ct. App. 2002)

       (quoting Potter v. State, 684 B.E.2d 1127, 1133 (Ind. 1997)). Accordingly,

       Twiford has not demonstrated that his trial counsel was ineffective on this

       issue.


                                               Jury Admonishment

[21]   Twiford next contends that his trial counsel was ineffective when his counsel

       requested that the trial court admonish the jury that it could only consider the

       evidence of prior sexual conduct between Twiford and B.B. that had occurred

       at the trailer “only insofar as it demonstrates a plan to exploit and sexually

       abuse the child and not as independent evidence of a separate crime.” Trial Tr.



       3
         On appeal, Twiford does not suggest that the outcome would have been different had his trial counsel
       objected to the testimony instead of moving for a mistrial.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019              Page 11 of 19
       at 138. Twiford specifically contends that his counsel’s request for that

       admonishment amounted to ineffective assistance because it improperly linked

       B.B.’s testimony regarding the act that had occurred at the trailer, which he

       contends was inadmissible, to the allegations at issue. But, again, even

       assuming for the sake of argument that Twiford is correct that B.B.’s testimony

       was inadmissible, we cannot say that his counsel’s actions amounted to

       ineffective assistance of counsel.


[22]   Here, the record demonstrates that, after B.B. had testified regarding the acts

       that had occurred in the trailer, his trial counsel moved for a mistrial because

       B.B.’s testimony “dealt with . . . possible molestation at a trailer which would

       have had to be at least . . . a year before the charged dates.” Trial Tr. at 126.

       But, based on an objection by the State, the trial court denied his motion for a

       mistrial. Twiford’s counsel then asked for a limiting instruction that would

       instruct the jury that they “may only decide the facts on the dates that are

       alleged in the charging Information.” Id. at 129. But the court informed

       Twiford’s counsel that the dates in the information do not control unless the

       defendant has asserted an alibi defense, which was not the case here. Twiford’s

       counsel then agreed to the trial court’s proposed solution to strike B.B.’s

       testimony. But after the State again objected, the trial court decided not to

       strike the testimony. At that point, Twiford’s counsel concluded that the “only

       suitable alternative” was to ask the court to give a limiting instruction to the

       jury. Trial Tr. at 136.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 12 of 19
[23]   The testimony of Twiford’s trial counsel at the post-conviction hearing

       demonstrates that he made a strategic decision to request the admonishment.

       Indeed, Twiford’s counsel testified that, because jurors cannot unhear

       testimony, he had requested the jury admonishment because “[i]t was as

       appropriate . . . as I was, potentially, going to get.” P-C. Tr. at 34. He further

       testified that he “had already made [his] objection to, potentially, preserve that

       issue; and, at that point, a limiting instruction . . . would at least tell the jury

       that they can’t use that as part of . . . the elements of . . . any of those crimes.”

       Id.


[24]   It is clear that Twiford’s trial counsel requested that admonishment because the

       jury had already heard B.B.’s testimony about acts that had occurred in the

       trailer, because the trial court had denied his motion for a mistrial, because the

       trial court had effectively denied his first request for an admonishment

       instructing the jury that it could only decide the facts on the dates alleged, and

       because the trial court had declined to strike the portion of B.B.’s testimony

       regarding the trailer. At that point, Twiford’s counsel made a strategic decision

       to ensure that, at the very least, the jury was informed that it could not use

       B.B.’s testimony about the events that had allegedly occurred in the trailer to

       prove the elements of the charged crimes. We cannot say that Twiford’s

       counsel’s strategic decision to request that jury admonishment was

       unreasonable. See Miller, 771 N.E.2d at 1288. Twiford has not demonstrated

       that he was denied the effective assistance of counsel on this issue.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 13 of 19
                                    Failure to Object to Jury Instruction

[25]   Twiford further asserts that his trial counsel’s performance was ineffective

       because he failed to object to final jury instruction #13, which provided: “The

       State is not required to prove that the crime charged was committed . . . on the

       particular date or during a particular time period as alleged in the Information.”

       Trial Tr. at 200. According to Twiford, the evidence of acts that had occurred

       in the trailer years at a date prior to the charged offenses “tended to only show

       the defendant’s proclivity to commit the offenses for which he was being

       charged.” Appellant’s Br. at 20. And Twiford asserts that, “[b]y allowing this

       Instruction, the State was able to neutralize the years between the undiscovered

       disclosure and the charged offenses and circumvent the Rules of Evidence.” Id.

       at 20-21.


[26]   But we need not determine whether Twiford’s trial counsel’s failure to object to

       that jury instruction amounted to deficient performance because Twiford has

       not shown that, but for his counsel’s failure to object, there is a reasonable

       probability that the result of his trial would have been different. At trial, B.B.

       testified to numerous incidents that had occurred while Twiford was staying

       with them between June and September 2009. Indeed, B.B. testified that

       Twiford had touched her “private” area where she “go[es] potty.” Trial Tr. at

       102. B.B. also testified that Twiford had “tried to put his private part” in hers

       more than five times. Id. at 104. Additionally, B.B. testified that, on one

       occasion, Twiford took her clothes off and “tried to have S-E-X” with her. Id.

       at 106. Further, B.B. testified that Twiford had touched her private part with

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 14 of 19
       his hand “like ten times.” Id. at 108. B.B. also testified that Twiford had

       “made [her] shake his private part.” Id. And B.B. testified that Twiford had

       put “[w]hite, clear stuff” into her “bottom.” Id. at 139. In all, B.B. testified that

       Twiford had touched her “twenty times.” Id. at 113.


[27]   Based on the totality of the evidence in this case, we cannot conclude that

       B.B.’s testimony about the act that had occurred in the trailer prejudiced

       Twiford to the extent that the outcome of his trial would have been different

       had his trial counsel objected to final instruction #13 and had the jury not been

       instructed that the State was not required to prove that the crime charged was

       committed on the particular date as alleged in the information. See Bradford v.

       State, 988 N.E.2d 1192, 1205 (Ind. Ct. App. 2013) (holding that, under the

       circumstances of all of the evidence presented in the case, the Court could not

       conclude that the outcome would have been different had the defendant’s

       counsel objected to the final instruction at issue and had the jury not been told

       that it could consider prior inconsistent statements as substantive evidence).

       Stated another way, Twiford has not demonstrated that the jury would not have

       convicted him even if it had been instructed not to consider B.B.’s testimony

       about acts that had occurred in the trailer. Twiford has not demonstrated that

       he received ineffective assistance of counsel on this issue.


                            Issue Two: Effectiveness of Appellate Counsel

[28]   Twiford also contends that he was denied the effective assistance of his

       appellate counsel. “We apply the same standard of review to claims of

       ineffective assistance of appellate counsel as we apply to claims of ineffective
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 15 of 19
       assistance of trial counsel.” Montgomery v. State, 21 N.E.3d 846, 854 (Ind. Ct.

       App. 2014). “[T]o prevail on a claim of ineffective assistance of counsel, a

       petitioner must demonstrate both that his counsel’s performance was deficient

       and that the petitioner was prejudiced by the deficient performance.” Id. at 853.

       “Failure to satisfy either prong will cause the claim to fail.” Id. at 854.


[29]   Ineffective assistance of counsel claims generally fall into three categories: 1)

       denial of access to an appeal; 2) waiver of issues; and 3) failure to present issues

       well. Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014). Here, Twiford asserts

       that his appellate counsel failed to raise an issue on direct appeal that was

       clearly stronger than the one sufficiency issue she did raise. When evaluating a

       claim than an appellate attorney should have raised certain issues on appeal, we

       must determine “whether an unraised issue was significant and obvious from

       the face of the record” and “whether the unraised issue was ‘clearly stronger’

       than the raised issue or issues.” Graham v. State, 941 N.E.2d 1091, 1099 (Ind.

       Ct. App. 2011) (quoting Fisher v. State, 810 N.E.2d 674, 676 (Ind. 2004)).


[30]   Counsel is very rarely found to be ineffective when the issue is failure to raise a

       claim on direct appeal. See Montgomery, 21 N.E.3d at 854. That is because

       “‘the decision of what issues to raise is one of the most important strategic

       decisions to be made by appellate counsel.’” Id. (quoting Bieghler v. State, 690

       N.E.2d 188, 193 (Ind. 1997)). Accordingly, “‘reviewing courts should be

       particularly deferential to counsel’s strategic decision to exclude certain issues

       in favor of others, unless such a decision was unquestionably unreasonable.’”

       Id. (quoting Bieghler, 690 N.E.2d at 193-94).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 16 of 19
[31]   Here, Twiford contends that his appellate counsel’s performance was deficient

       because she failed to raise on direct appeal the “forbidden inference” of his guilt

       that Twiford alleges the jury was allowed to make from B.B.’s disclosure about

       the prior bad act that had occurred in the trailer. Appellant’s Br. at 26. In

       essence, Twiford contends that his appellate counsel should have argued on

       direct appeal that the trial court abused its discretion under Evidence Rule

       404(b) when it admitted B.B.’s testimony. And Twiford contends that the issue

       of the admissibility of B.B.’s testimony was clearly stronger than the sufficiency

       of the evidence issue. Appellee’s Br. at 26.


[32]   However, to succeed on his ineffective assistance of counsel claim, “the

       prejudice prong of Strickland requires [Twiford] to demonstrate a reasonable

       probability that, but for his counsel’s errors, the result of his direct appeal would

       have been different.” Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002).

       Accordingly, to show prejudice regarding appellate counsel’s failure to raise the

       admissibility of B.B.’s testimony, Twiford is required to show that this Court

       would have reversed his convictions had his appellate counsel raised that issue

       on appeal.


[33]   But Twiford has not shown that there is a reasonable probability that the result

       of his direct appeal would have been different had his appellate counsel raised

       the issue of the admissibility of B.B.’s testimony. It is well settled that “[e]rrors

       in the admission or exclusion of evidence are to be disregarded as harmless

       error unless they affect the substantial rights of the party.” Lewis v. State, 34

       N.E.3d 240, 248 (Ind. 2015). “To determine whether an error in the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 17 of 19
       introduction of evidence affected the appellant’s substantial rights, this Court

       must assess the probable impact of that evidence upon the jury.” Id.


[34]   Here, even if we had held that the trial court abused its discretion when it

       admitted B.B.’s testimony, we would have concluded that any error in that

       admission was harmless. As discussed above, B.B. testified at trial to numerous

       incidents that had occurred while Twiford was staying in the same house as

       B.B. from June to September 2009. Indeed, B.B. testified that Twiford had

       touched her in her “private area.” Trial Tr. at 102. She further testified that

       Twiford had “tried to put his private part” in hers more than five times. Id. at

       104. Additionally, B.B. testified that Twiford “tried to have S-E-X” wither her.

       Id. at 106. B.B. also testified that Twiford had “made [her] shake his private

       part.” Id. And B.B. testified that Twiford had put “[w]hite, clear stuff” into her

       “bottom.” Id. at 139. In all, B.B. testified that Twiford had touched her

       “twenty times.” Id. at 113. Based on that testimony, we cannot say that B.B.’s

       one statement—which, based on a jury admonishment, was not even admitted

       as substantive evidence—regarding an act that had occurred prior to the date

       range alleged in the charging information had a probable impact on the jury.


[35]   Because any error in the admission of B.B.’s statement was harmless, Twiford

       has not demonstrated a reasonable probability that the result of his direct appeal

       would have been different had his appellate counsel raised the issue of the

       admissibly of B.B.’s testimony rather than the sufficiency of the evidence. See

       Martin, 760 N.E.2d at 600. As such, Twiford has not demonstrated that he was

       denied the effective assistance of appellate counsel.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 18 of 19
                                                   Conclusion

[36]   In sum, we affirm the post-conviction court’s denial of Twiford’s petition for

       post-conviction relief.


[37]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019   Page 19 of 19
