MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 19 2019, 8:46 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Laura L. Volk                                            Ian A. McLean
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Fernbach,                                          February 19, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1065
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         69C01-1206-PC-1



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019             Page 1 of 23
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, James Fernbach (Fernbach), appeals the post-conviction

      court’s denial of his petition for post-conviction relief.


[2]   We affirm.


                                                    ISSUE
[3]   Fernbach raises three issues on appeal, which we consolidate and restate as the

      following single issue: Whether Fernbach was denied the effective assistance of

      Trial Counsel.


                      FACTS AND PROCEDURAL HISTORY
[4]   The relevant facts, as in this court’s opinion issued in Fernbach’s direct appeal,

      are as follows:


              Fernbach has a long history of mental illness. He has struggled
              with depression since elementary school, was committed to an
              institution when he was a teenager, and attempted suicide when
              he was sixteen years old. Fernbach has also had some history of
              violent behavior. When he was a young man, he fathered a child
              with a girlfriend, with whom he had a volatile relationship.
              Fernbach was arrested several times, for domestic violence, for
              threatening his girlfriend with an axe, for trying to strangle her,
              and for destroying items in their residence.


              Fernbach later married his wife, Susan. In the fall of 2008,
              Fernbach began to have paranoid delusions. At one point, he
              fired a shotgun into the woods near his home, claiming that he
              was shooting at intruders. After this incident, his family
              members removed firearms from his home. Fernbach still

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 2 of 23
        displayed symptoms of his paranoia, including barricading the
        sliding door and windows of his home and putting nails in his
        gutters to prevent anyone from getting on his roof.


        On a family vacation in September of that year, Fernbach
        thought his car was being followed. His family took him to an
        emergency room at a hospital in North Carolina, where he was
        prescribed anti-anxiety medication and told to see a mental
        health professional. Fernbach’s symptoms did not improve, and
        he even went so far as to have family members taste his food to
        assure that it had not been poisoned. After Fernbach returned
        from vacation with family, he was taken to the emergency room
        at the Decatur County hospital. He was again treated for anxiety
        and released.


        In October of 2008, Fernbach’s family had him involuntarily
        committed at the University of Cincinnati hospital for seventy-
        two hours. There, Fernbach was diagnosed with bipolar disorder
        with psychotic tendencies. Nevertheless, he was released from
        the hospital after the seventy-two hour[s] hold and continued to
        have delusions that people were talking about him and
        threatening his family.


        Shortly after being released from the hospital in Cincinnati,
        Fernbach overdosed on Tylenol pills and was taken to the
        emergency room. Fernbach’s wife therefore took him to
        [Centerstone], a mental health facility in Batesville.
        [Centerstone] personnel diagnosed Fernbach with bipolar
        disorder and also stated he possibly suffered from schizophrenia.
        [Centerstone] monitored Fernbach and attempted to treat his
        problems with medication. Still, Fernbach continued to suffer
        from paranoid delusions, and eventually, he illegally purchased a
        handgun in Cincinnati.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 3 of 23
        On April 4, 2009, Fernbach went to a gas station and
        convenience store in Batesville. After talking to the cashier, he
        walked back out into the parking lot. There, he approached a
        vehicle belonging to Philip and Roberta Cruser, who had stopped
        at the station on their way to Cincinnati. When Mrs. Cruser
        entered the car after paying for fuel, Fernbach raised his two-shot
        derringer pistol to Mr. Cruser’s head and shot him behind the
        ear. Fernbach then turned and saw Benjamin Dick. Fernbach
        walked toward Dick and raised the gun toward Dick’s head.
        Dick grabbed Fernbach’s arm in an attempt to defend himself.
        Fernbach was able to break free from Dick’s grip and fired at
        Dick’s head. The shot instead passed through Dick’s hand and
        narrowly missed his head. As Dick lay on the ground, Fernbach
        tried to kick him in the head. Fernbach then started to reload the
        pistol with ammunition he had in his pocket. Dick tried to
        persuade Fernbach not to shoot him, saying, “man, . . . I’ve got
        kids . . . the cops are coming . . . you need to get the hell out of
        here.” [] Fernbach then got in his vehicle and fled. A bystander
        followed Fernbach, who sped away at a high rate. Once
        Fernbach got home, he told his wife that he “thought [he] killed
        somebody on accident.” []. Fernbach then called the police.


        The police responded and apprehended Fernbach. Fernbach
        initially told the police that he had little recollection of what had
        occurred, claiming that he was in a “daze” but could remember
        “squeezing the trigger.” [] Fernbach later claimed that Dick had
        attacked him and that he was merely defending himself.
        Specifically, Fernbach claimed that he fired his gun in the air and
        that Dick was “coming at [Fernbach].” [] Fernbach also stated
        that “the only thing I remember is swinging and hitting [Dick]
        and then him hitting the ground.” []


        ***


        Fortunately, neither of Fernbach’s victims died. Mr. Cruser was
        gravely injured and suffers from severe disabilities as a result of
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 4 of 23
               the gunshot wound to his head. Although Dick was not shot in
               the head, his hand was also severely injured[,] and he remains
               disabled.


      Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011) trans. denied.


[5]   On April 6, 2009, the State filed an Information, charging Fernbach with two

      Counts of attempted murder. Fernbach pleaded not guilty by reason of

      insanity. On April 7, 2009, the trial court appointed Trial Counsel to represent

      Fernbach. On June 10, 2009, Trial Counsel filed a motion to determine if

      Fernbach was competent to stand trial and a notice of defense to mental disease

      or defect. On June 16, 2009, the trial court ordered Dr. Phillip Coons (Dr.

      Coons) and Dr. Robert Kurzhals (Dr. Kurzhals) to examine Fernbach’s sanity

      and competency to stand trial.


[6]   On October 26, 2009, a competency hearing was held. At the end of the

      hearing, the trial court decided that Fernbach was incompetent to stand trial.

      The trial court ordered Fernbach to be committed to the Department of Mental

      Health. On February 22, 2010, Logansport State Hospital, where Fernbach had

      been committed, notified the trial court that Fernbach was competent to stand

      trial.


[7]   A jury trial commenced on January 11, 2011. The parties raised the idea of

      stipulating to Fernbach’s medical records. The trial court interjected and asked

      the parties which records they were discussing, and Trial Counsel replied,

      “Well, there’s an awful lot . . . I mean . . . There’s [sic] medical records from

      several different places.” (Trial Tr. Vol. II, p. 439). The State argued that it
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 5 of 23
      would prefer the admission of all Fernbach’s medical records. Following that

      argument, Trial Counsel responded by stating, “Okay. Uh, the only thing I ask,

      just so I don’t get, so I don’t get surprised by something, just give me a list first

      thing in the morning of the medical records that you want. You . . . don’t have

      to tell me all the . . . particular records, just the places and I don’t think I’ve got

      a problem with it. Because I think [Dr.] Kurzhals had almost all of them, if not

      all of them.” (Trial Tr. Vol. II, p. 440). The following morning, Fernbach’s

      medical records from “Logansport State Hospital, Margaret Mary Community

      Hospital, Tree City Medical, Decatur County Hospital, Dearborn County

      Hospital, Columbus Regional Hospital, Centerstone [], and University of

      Cincinnati Hospital” were stipulated to by the parties (Stipulated Packet).

      (Trial Tr. Vol. II, p. 448).


[8]   Fernbach’s jury trial concluded on January 18, 2011, and the jury found him

      guilty but mentally ill on the two Counts of attempted murder. On February

      17, 2011, the trial court conducted a sentencing hearing. At the end of the

      hearing, the trial court sentenced Fernbach to consecutive thirty years on both

      Counts. Fernbach appealed.


[9]   On appeal, Fernbach raised two issues: (1) whether the jury clearly erred in

      finding him guilty but mentally ill instead of not guilty by reason of insanity;

      and (2) whether his sentence was inappropriate. On October 7, 2011, we

      affirmed his convictions. On December 20, 2011, the Indiana Supreme Court

      denied transfer. On June 27, 2012, Fernbach filed a petition for post-conviction

      relief, which was later amended three times. On January 10, 2018, the post-

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 6 of 23
       conviction court conducted an evidentiary hearing and denied Fernbach’s

       petition.


[10]   Fernbach now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[11]   Under the rules of post-conviction relief, the petitioner must establish the

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5): Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To

       succeed on appeal from the denial of relief, the post-conviction petitioner must

       show that the evidence is without conflict and leads unerringly and

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

       court. Id. at 975. The purpose of post-conviction relief is not to provide a

       substitute for direct appeal, but to provide a means for raising issues not known

       or available to the defendant at the time of the original appeal. Id. If an issue

       was available on direct appeal but not litigated, it is waived. Id.


[12]   Further, the post-conviction court in this case entered findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1, § 6. “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.” Little v. State, 819 N.E.2d 496, 500 (Ind. Ct.

       App. 2004) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g

       denied), trans. denied. In this review, findings of fact are accepted unless clearly

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 7 of 23
       erroneous, but no deference is accorded to conclusions of law. Id.

       Additionally, we remind Fernbach that he is not entitled to a perfect trial, but is

       entitled to a fair trial, free of errors so egregious that they, in all probability,

       caused the conviction. Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993).


                                      II. Ineffective Assistance of Counsel

[13]   Fernbach contends that he was denied the effective assistance of Trial Counsel.

       The standard by which we review claims of ineffective assistance of counsel is

       well established. In order to prevail on a claim of this nature, a defendant must

       satisfy a two-pronged test, showing that: (1) his counsel’s performance fell

       below an objective standard of reasonableness based on prevailing professional

       norms; and (2) there is a reasonable probability that, but for counsel’s errors the

       result of the proceeding would have been different. Jervis v. State, 28 N.E.3d

       361, 365 (Ind. Ct. App. 2015) (citing Strickland v. Washington, 466 U.S. 668,

       690, 694, (1984) reh’g denied), trans. denied. The two prongs of the Strickland test

       are separate and distinct inquiries. Id. Thus, “if it is easier to dispose of an

       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

       course should be followed.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind.

       2001) (quoting Strickland, 466 U.S. at 697) reh’g denied; cert. denied, 537 U.S. 839

       (2002).


                                                 A. Failure to Object

[14]   To demonstrate ineffective assistance of counsel for failure to object, a

       defendant must prove that an objection would have been sustained if made and

       that he was prejudiced by counsel’s failure to make an objection. Wrinkles v.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 8 of 23
       State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied (2002). Fernbach argues

       that Trial Counsel failed to object to (1) the inclusion of Dr. Kurzhals’

       deposition in the Stipulated Packet; (2) the highlights on several pages of the

       Stipulated Packet; and (3) the State’s comments during closing arguments.


                                          1. Dr. Kurzhals’ Deposition

[15]   Although the parties agreed only to the stipulation of medical records in the

       Stipulated Packet, four other unapproved documents were included—i.e., Dr.

       Kurzhals’ deposition, Fernbach’s competency report prepared by Dr. Kurzhals,

       Fernbach’s sanity report prepared by Dr. Kurzhals, and a list of Fernbach’s

       prior convictions. Fernbach appears to only challenge the inadvertent inclusion

       of Dr. Kurzhals’ deposition, and he argues that had Trial Counsel objected, the

       trial court would have sustained the objection.


[16]   Turning to the record, after the State charged Fernbach with two Counts of

       attempted murder in April of 2009, in June 2009, Trial Counsel filed a motion

       to determine Fernbach’s sanity and competency to stand trial. The trial court

       consequently ordered Dr. Coons and Dr. Kurzhals to evaluate Fernbach’s

       sanity and competency. At the time, Fernbach was being held at the

       Logansport State Hospital where he was receiving treatment for his mental

       illness.


[17]   In August 2009, Dr. Kurzhals examined Fernbach, prepared an insanity and

       competency report, and subsequently testified at Fernbach’s competency

       hearing in October 2009. Following that hearing, the trial court concluded that


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 9 of 23
       Fernbach was incompetent to stand trial and was therefore returned to

       Logansport State Hospital. After several months, Logansport State Hospital

       informed the trial court that Fernbach was competent to stand trial.


[18]   On August 11, 2010, Dr. Kurzhals’ deposition was conducted. At his

       deposition, Dr. Kurzhals testified that the most important inquiry at the time

       was whether Fernbach appreciated the “wrongfulness” of his actions. (Tr. Exh.

       Vol. IV, p. 931). With respect to Fernbach’s competency to stand trial, Dr.

       Kurzhals was “kind of on the fence because factually, [Fernbach] was able to

       answer most of the questions correctly.” (Tr. Exh. Vol. IV, p. 848). However,

       Dr. Kurzhals “recommended that he be found incompetent” because Fernbach

       “seemed to be somewhat disillusioned about what happened, and [Dr.

       Kurzhals] didn’t feel [that Fernbach] was at his optimum level of functioning.”

       (Tr. Exh. Vol. IV, p. 848). Based on his observations and review, Dr. Kurzhals

       ultimately concluded that Fernbach either suffered from paranoid

       schizophrenia, schizoaffective disorder, or bipolar disorder with psychotic

       features. At Fernbach’s jury trial, Dr. Kurzhals testified as follows:


               [A]s far as diagnosis, my diagnosis of him at the time was that he
               suffered from paranoid schizophrenia. Um, primarily because he
               was experiencing paranoid delusional beliefs. What that means
               is he had false beliefs that people were trying to harm him or his
               family when there was no evidence that anyone was, was
               attempting to do so. And the [] second sort of criteria for the
               insanity defense is that the illness or defect has to be so severe
               that the person didn’t appreciate the wrongfulness of their
               conduct. Um, it is my opinion that in the mental state he was in
               at the time he was so paranoid, so delusional, so confused, that

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 10 of 23
               he actually believed that these people were harming him and that
               he in the state of mind he was in at the time believed that he was
               defending his family or trying, or preventing harm from coming
               to his family.


       (Trial Tr. Vol. IV, p. 937). The post-conviction court compared Dr. Kurzhals’

       deposition and trial testimony and found that


               the testimony given in the deposition regarding his evaluations
               was substantially similar to his trial testimony. The entire
               deposition is almost exclusively Dr. Kurzhals going through his
               report and identifying how he came to his conclusions. Further,
               Dr. Kurzhals’ deposition promoted defendant’s insanity defense.
               Although, it should not have been admitted, the [post-conviction]
               court finds that [Fernbach] was not unfairly prejudiced by its
               inadvertent inclusion. [Trial Counsel] was not deficient or
               ineffective for [not] objecting to their admission.


       (PCR App. Vol. II, p. 248). We remind Fernbach that he is not entitled to a

       perfect trial, but is entitled to a fair trial, free of errors so egregious that they, in

       all probability, caused the conviction. Averhart, 614 N.E.2d at 929. In addition,

       if we can easily dismiss an ineffectiveness claim based upon the prejudice

       analysis, we may do so without addressing whether counsel’s performance was

       deficient. Law v. State, 797 N.E.2d 1157, 1162 (Ind. Ct. App. 2003).


[19]   Fernbach’ defense at his trial was that he was not guilty by reason of insanity,

       and our review of Dr. Kurzhals’ deposition shows it does not have a harmful

       effect on Fernbach’s defense as Fernbach argues. To the contrary, if the jury

       considered the deposition it would have found Dr. Kurzhals’ trial testimony

       regarding Fernbach’s sanity to be supplemented, explained, and even

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 11 of 23
       strengthened, by the deposition. Among other similar matters, the deposition

       explains Dr. Kurzhals’ opinion that Fernbach was insane at the time he

       committed the offenses. Further, we note that Fernbach’s medical reports were

       voluminous. In fact, the post-conviction court noted that Fernbach’s medical

       records consisted of about 700 pages. Trial Counsel’s testimony that he

       conducted a brief perusal of the Stipulated Packet on the morning of the trial,

       undermines Fernbach’s assertion that Trial Counsel failed to look through the

       Stipulated Packet. Finding no prejudice, we affirm the post-conviction court.


                                2. Admission of Highlighted Medical Records

[20]   Fernbach’s second premise for his ineffective assistance of counsel claim is

       based on the claim that Trial Counsel did not object when the State used

       highlighted medical records to conduct its case-in-chief. The highlighted

       portions seemed to focus on Fernbach’s use of illegal drugs and the fact these

       drugs contributed to Fernbach’s psychosis and hallucinations.


[21]   At the post-conviction hearing, Trial Counsel admittedly said that he should

       have objected to the State’s use of highlighted copies of his medical records that

       had been extracted from the Stipulated Packet. Even if we assume without

       deciding that Trial Counsel’s performance was deficient for not objecting to the

       admission of his highlighted medical records, Fernbach has failed to show the

       prejudice component of the Strickland standard and, therefore, cannot succeed

       on his ineffective assistance of counsel claim.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 12 of 23
[22]   At Fernbach’s trial, the State called Fernbach’s wife, Susan, to testify to her

       relationship with Fernbach, prior interaction with mental-health practitioners,

       and Fernbach’s behavior both generally as well as before and after the

       shootings. Susan testified that Fernbach had never used illegal drugs, and that

       she had only seen him smoke marijuana once, before they were married in 2002

       or 2003, and that his mental-health issues had begun in late 2007 or early 2008,

       resulting in treatment at various mental-health facilities. Susan testified that

       during a family vacation, Fernbach displayed signs of paranoia, and on their

       return, she said she took Fernbach to the University of Cincinnati Hospital

       where he was kept for several days, diagnosed as “bipolar with psychotic

       tendencies” and prescribed various medications. (Trial Tr. Vol. III, p. 629).

       Susan added that she ensured that Fernbach took his prescribed medicine,

       which appeared to work for a time until Fernbach became worse, at which

       point she took him to Centerstone for outpatient treatment.


[23]   During redirect, Susan admitted that Fernbach had not seen a mental-health

       professional for three months before the shootings. She also claimed that while

       Fernbach had stopped taking two of his prescribed medications, he did so

       because a doctor had told him to stop taking them. Directing her attention to

       the fall of 2008, the State provided her with a copy of a record from the

       University of Cincinnati Hospital and directed her to read the “highlighted”

       part.” (Trial Tr. Vol. III, p. 652). Susan read the part which said, “smoking

       marijuana made him paranoid.” (Trial Tr. Vol. III, p. 652). Susan agreed that

       the medical report corresponded to her observations of Fernbach’s mental


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 13 of 23
       health worsening when Fernbach used drugs. The State then turned to another

       page of Fernbach’s records, from Columbus Regional Hospital and asked Susan

       to read the “highlighted” section. (Trial Tr. Vol. III, p 654). Susan stated,

       “drug abuse,” and a second highlighted portion which stated, “has not been

       honest with wife about drug use. Denies, minimizes drug problems.” (Trial Tr.

       Vol. III, p 654). Reading from a medical record from Centerstone, Susan

       stated, “Um, it says he reports that he began to use marijuana a couple of weeks

       ago. He thought it might help his anxiety, but he states that it just seems to

       bump the anxiety up.” (Trial Tr. Vol. III, p. 656). Susan agreed that the report

       was dated January 8, 2009, the same time during which Fernbach stopped

       visiting mental-health practitioners.


[24]   During the State’s case-in-chief, Dr. Kurzhals admittedly said that “smoking

       marijuana. . . can cause paranoia” in a person, however, he dispelled that being

       the only factor to be considered while making such a determination. (Tr. Vol.

       IV, p. 954). In fact, Dr. Kurzhals directed the State to look at a discharge form

       from one hospital which did not stress Fernbach’s drug use as the reason for

       Fernbach’s paranoia; rather, the hospital concluded that Fernbach’s paranoia

       was due to his Bipolar diagnosis.


[25]   In his brief, Fernbach argues


               The [State] sought to establish Fernbach’s behavior and paranoia
               was due to his use of illegal drugs []. [The State] combed the
               over seven hundred pages of the stipulation packet and plucked
               five pages out that referenced Fernbach’s illegal drug use []. The
               [State] copied those pages, highlighted the portions of each

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 14 of 23
               mentioning Fernbach’s drug use, and individually offered the
               highlighted pages into evidence a second time . . . The [State]
               sought to have the jury focus on the few extracted highlighted
               pages introduced in a much less cumbersome group rather than
               the entire stipulation packet containing all of Fernbach’s mental
               health and medical records. Had [Trial Counsel] objected, the
               jury would have been left to review the unaltered seven hundred
               pages of original records, allowing it to have unbiased and
               accurate documents depicting Fernbach’s mental health.


       (Appellant’s Br. p. 41). Fernbach contends that the State’s use of highlighted

       pages extracted from the Stipulated Packet, without any objection from Trial

       Counsel, allowed undue emphasis on the State’s evidence, and that he was

       prejudiced. In support of his claim of prejudice, Fernbach relied on our

       supreme court’s holding in Proctor v. State, 584 N.E.2d 1089, 1091 (Ind. 1992).


[26]   In Proctor, the defendant was charged with the murder of a fellow inmate during

       a prison riot. Id. After the jury appeared to be deadlocked in their

       deliberations, the trial court called the jury back at 2:30 a.m., and informed the

       jury that the defendant had moved for a mistrial and that it was prepared to

       grant the request. Id. at 1092. The jury was sent back for further deliberations.

       Id. After about forty minutes, the jury returned with a unanimous guilty

       verdict. Id. Our supreme court determined that by allowing the jury to return

       to deliberations and render a verdict after being informed that the defendant’s

       counsel had moved for a mistrial and that the court was prepared to grant it, the

       judge allowed considerations of economy to outweigh the facilitation of the

       ascertainment of truth. Id. In vacating the defendant’s conviction, our supreme


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 15 of 23
       court determined that the trial court’s comments had a prejudicial effect since

       the comments had tainted the regularity of the proceedings. Id.


[27]   We find Fernbach’s reliance of Proctor misplaced since the considerations in

       Proctor do not apply here. Proctor related to a situation where the trial court’s

       comments had a prejudicial effect on jury deliberations. Fernbach’s case

       pertains to a situation where counsel failed to object to the admission of

       evidence. Unlike the jury in Proctor, the jury in Fernbach’s case was not

       directed to consider only the highlighted portions of Fernbach’s medical records

       which the State sought to use during its case-in-chief.


[28]   In rejecting Fernbach’s claim of prejudice, the post-conviction court

       determined:


               After reviewing the transcript and the documents, it is apparent
               that portions of exhibits were highlighted in yellow by the State
               for witnesses to read into the record. It is completely reasonable
               for parties to argue a point in a document. The jury is then left to
               decide whether they accept or reject that argument. The entire
               document was submitted for the jury’s review.


               ***


               [Trial Counsel] sufficiently brought out through his questioning
               of Dr. Kurzhals that in all those highlighted documents the
               primary diagnosis was mental illness. [Fernbach] was not
               unfairly prejudiced by documents being admitted that were
               highlighted because that was simply the State pointing out certain
               references in the document to support their position, just as the
               defense did to point out their position.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 16 of 23
       (PCR App. Conf. Vol. II, p. 20).


[29]   In the instant case, we also find a lack of prejudice because any advantage that

       the State derived from the use of the highlighted medical records during its case-

       in-chief was compensated for by Dr. Kurzhals’ testimony which dispelled

       Fernbach’s drug use as the reason for Fernbach’s psychosis and delusions. Dr.

       Kurzhals testified that Fernbach’s bipolar diagnosis could have been the reason

       why Fernbach experienced paranoid delusions. See Harrison v. State, 644

       N.E.2d 1243, 1253 (Ind. 1995) (holding that “[p]sychiatry is an extremely

       uncertain field dealing with the mysteries of the human mind where expert

       opinions can be expected to and do differ widely”). Moreover, the trial court

       duly instructed the jury to consider all the evidence and not just the highlighted

       evidence that State used while questioning Susan. See Duncanson v. State, 509

       N.E.2d 182, 186 (Ind. 1987) (holding that “When the jury is properly

       instructed, we will presume they followed such instructions”). If we must

       presume the jury followed the instructions, then we cannot assume, as

       Fernbach does, that the jury considered only the highlighted portions that the

       State stressed upon at his trial. Similarly, we find that the post-conviction court

       did not err in denying Fernbach’s claim on this issue.


                               3. State’s Comments during Closing Argument

[30]   As a general proposition a jury may not be instructed on specific penal

       ramifications of its verdicts. See Schweitzer v. State, 552 N.E.2d 454, 457 (Ind.

       1990). However, acknowledging the “potential for confusion in cases where the

       jury is faced with the option of finding a defendant not responsible by reason of

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 17 of 23
insanity or guilty but mentally ill,” our supreme court has determined that

when such options are before a jury “and the defendant requests a jury

instruction on the penal consequences of these verdicts, the trial court is

required to give an appropriate instruction or instructions as the case may be.”

Georgopulos v. State, 735 N.E.2d 1138, 1143 (Ind. 2000). An instruction on not

guilty by reason of insanity was requested by Fernbach, and Final Instruction

28 advised the jury as follows:


        If the Defendant is found not responsible by reason of insanity at
        the time of the crime, the prosecuting attorney will file a petition
        for mental health commitment with the court. The court will
        hold a mental health commitment hearing at the earliest
        opportunity. The Defendant will be detained in custody until the
        completion of the hearing. If the court finds that the Defendant
        is mentally ill and either dangerous or gravely disabled, then the
        court may order the Defendant to be either placed in an
        outpatient treatment program of not more than ninety (90) days
        or committed to an appropriate mental health facility until a
        court determines commitment is no longer needed.


(Tr. App. Vol. II, p. 337). In his closing remarks, Trial Counsel read aloud

Final Instruction 28, and then argued as follows:


        A not responsible by insanity defense doesn’t mean he gets up
        out of his chair and walks out of here a free man. That’s why
        that instruction is allowed to be given to assure that he doesn’t
        just walk out and get out on the street. You have heard three (3)
        days of evidence that can be summed up in six (6) words, not
        responsible by reason of insanity.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 18 of 23
       (Trial Tr. Vol. V, p. 1205). In the rebuttal portion of the State’s closing

       argument, the State asserted:


               One statement I take serious issue with, [Trial Counsel] said I
               promise you he won’t walk out of here. Well, ladies and
               gentlemen, outpatient [is] outlined in final instruction twenty-
               eight (28) that you will get from the [c]ourt . . . An outpatient
               doesn’t mean incarcerated and it doesn’t mean somewhere
               enclosed. Outpatient reminds me of Centerstone.


       (Trial Tr. Vol. V, p. 1229).


[31]   Fernbach claims that the State’s closing argument, which discussed the

       possibility of outpatient treatment such as that provided at Centerstone, created

       an erroneous view of the law and violated our supreme court’s holding in

       Caldwell v. State, 722 N.E.2d 814, 816 (Ind. 2000). In that case, the trial court

       had refused an instruction on the potential consequences of a not guilty by

       reason of insanity verdict, and the State had still informed the jury that a not

       guilty by reason of insanity verdict would mean that the defendant had a license

       to kill. Id. at 816. In this case, by contrast, the trial court agreed with Fernbach

       that the jury should be instructed on the potential consequences of a not guilty

       by reason of insanity verdict and gave such an instruction. See Georgopulos, 735

       N.E.2d at 1143.


[32]   While the State’s closing argument did not refer to the consequences of a not

       guilty by reason of insanity verdict, Fernbach’s closing argument did. Despite

       the text of the upcoming Final Instruction 28, Trial Counsel argued, “A not

       responsible by insanity defense doesn’t mean he gets up out of his chair and
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 19 of 23
       walks out of here a free man.” (Trial Tr. Vol. V, p. 1205). That argument was

       not entirely correct since the consequences of a not guilty by reason of insanity

       verdict as described in Final Instruction 28 did not include mandatory inpatient

       commitment. In light of that argument, the State’s rebuttal argument was

       appropriate to correct the consequence of the not guilty verdict by reason of

       insanity as stated in Final Instruction 28.


[33]   As aptly described by the post-conviction court, the State “argued one half of

       the statute while [Fernbach] argued the other. However, jurors were instructed

       to base their decision on the evidence presented to them, not the potential

       outcome of either verdict.” (PCR App. Vol. II, p. 244). Had Trial Counsel

       objected, his argument would not have been sustained, thus, we conclude that

       Fernbach was not prejudiced.


                                     B. Failure to Present Expert Testimony

[34]   Next, Fernbach argues that Trial Counsel was deficient in not obtaining an

       expert witness who “could have explained the rarity of outpatient treatment”

       after a not guilty by reason of insanity verdict and that the expert would have

       “given his opinion on whether Fernbach met the civil commitment standard

       and placement.” (Appellant’s Br. p. 50).


[35]   Trial Counsel is given significant deference in choosing a strategy which, at the

       time and under the circumstances, he or she deems best. Potter v. State, 684

       N.E.2d 1127, 1133 (Ind. 1997). “Although egregious errors may be grounds for

       reversal, we do not second-guess strategic decisions requiring reasonable


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 20 of 23
       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). Such is the case here. We cannot say that the post-conviction court

       erred in concluding that Trial Counsel was not ineffective for failing to present

       an additional expert witness.


[36]   At the post-conviction hearing, Trial Counsel testified that his trial defense

       strategy was to prove that Fernbach “was not guilty by reason of insanity.”

       (PCR Tr. p. 9). Fernbach then called a forensic psychiatrist, Dr. George Parker

       (Dr. Parker) to testify that Trial Counsel should have procured an additional

       expert to testify that Fernbach met the criteria for civil commitment in the event

       the jury found him not guilty by reason of insanity. Fernbach maintains that

       such testimony would have been helpful to support Trial Counsel’s closing

       argument that Fernbach would not walk out of the courtroom upon a finding of

       not guilty by reason of insanity. In its findings, the post-conviction court

       reviewed Trial Counsel’s trial strategy and performance as follows:


               [Trial Counsel] prepared, submitted, and argued proposed final
               jury instructions that supported his insanity defense trial strategy.
               He ensured an instruction that distinctly and explicitly explained
               what would happen to [Fernbach] if found not responsible by
               reason of insanity was included and testified that he believed he
               argued that instruction during his closing argument. [See] Final
               Instruction No. 28. Based on the clear and explicit instruction,
               [Trial Counsel] testified that he did not consider calling an
               additional expert to explain what would happen to [Fernbach] if
               the jury found him not responsible by reason of insanity.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 21 of 23
       (PCR App. Vol. II, p. 240). Tactical choices by trial counsel do not establish

       ineffective assistance of counsel even though such choices may be subject to

       criticism or the choice ultimately prove[s] detrimental to the defendant.” Garrett

       v. State, 602 N.E.2d 139, 142 (Ind. 1992). We agree with the post-conviction

       court that counsel was not ineffective in failing to call an additional expert

       witness to testify. Moreover, such evidence would have been cumulative

       evidence to the final instructions and would not lead to a reasonable probability

       that the jury would have reached a different verdict. See Harrison v. State, 707

       N.E.2d 767, 784 (Ind. 1999). Accordingly, we conclude that Fernbach has

       failed to show the outcome of his trial would have been different had an

       additional expert witness testified. Thus, we conclude that Trial Counsel’s

       failure to procure another expert does not overcome the strong presumption of

       counsel’s competence.


                                                C. Cumulative Error

[37]   Finally, Fernbach contends that the cumulative effect of Trial Counsel’s errors

       rendered the representation ineffective. “Errors by counsel that are not

       individually sufficient to prove ineffective representation may add up to

       ineffective assistance when viewed cumulatively.” French v. State, 778 N.E.2d

       816, 826 (Ind. 2002) (quotation omitted). Here, however, Fernbach has not

       established any errors by Trial Counsel; therefore, there can be no cumulative

       error. See Lucas v. State, 499 N.E.2d 1090, 1098 (Ind. 1986) (explaining that

       alleged errors that do not present a single basis for reversal “do not gain the

       stature of reversible error when viewed en masse”).


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 22 of 23
                                             CONCLUSION
[38]   Based on the foregoing, we conclude that Fernbach was not denied the effective

       assistance of Trial Counsel.


[39]   Affirmed.


[40]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1065 | February 19, 2019   Page 23 of 23
