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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-16-244

                                                   Opinion Delivered: November   3, 2016
MARK AARON LUPER
                                 APPELLANT

V.                                                 APPEAL FROM THE BENTON
                                                   COUNTY CIRCUIT COURT
STATE OF ARKANSAS                                  [NO. 04-CR-761]
                                    APPELLEE
                                                   HONORABLE ROBIN F. GREEN,
                                                   JUDGE

                                                   AFFIRMED.


                               HOWARD W. BRILL, Chief Justice


        Appellant Mark Aaron Luper appeals the order denying his petition for

 postconviction relief. Luper was convicted by a Benton County jury of the rape of his

 former stepdaughter, S.H., and sentenced to twenty-three years’ imprisonment in the

 Arkansas Department of Correction. Luper appealed, and the court of appeals affirmed. See

 Luper v. State, 2015 Ark. App. 440, 468 S.W.3d 289.1 Thereafter, Luper filed a petition for



        1
          The underlying facts leading to Luper’s conviction were set forth in detail in Luper,
 2015 Ark. App. 440, 468 S.W.3d 289. Briefly, S.H. testified that late on the evening of June
 11, 2012, or early in the morning on June 12, she had fallen asleep on the couch while she
 and Luper watched a movie. She stated that she awoke with an intense pain in her vagina
 and abdomen, that she felt Luper’s hand on the inside of her leg, and that her inner thigh
 was wet. Although she had initially told her mother and investigators that Luper had inserted
 his finger into her vagina that night, she later revealed and testified that she believed he had
 actually inserted his penis. Seminal fluid was found on S.H.’s sleeping shorts, the underwear
 she was wearing that night, and the underwear she was wearing the next day. Sperm cells
 were found on the inner crotch area of both pairs of underwear, and semen was found on
 the thigh area of the shorts. Testing revealed that Luper was a major DNA contributor to
 the sperm cells and the semen.
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postconviction relief pursuant to Arkansas Rule of Civil Procedure 37.1, in which he

asserted eleven claims of ineffective assistance of trial counsel. The circuit court denied the

petition without a hearing. For reversal, Luper contends that he was entitled to an

evidentiary hearing on five of the claims in his petition.2 Luper asserts that trial counsel was

ineffective (1) for failing to call a witness to corroborate his defense that the “false” allegation

of rape was a means for Robin Luper,3 the victim’s mother, to obtain leverage in her divorce

action against him, (2) for not adequately exploring Robin’s “financial demands and

obligations,” (3) for failing to show the jury videos depicting S.H. and him at Walmart the

day after the rape, (4) for failing to obtain S.H.’s phone records, and (5) for failing to dispute

S.H.’s claim that her sister, H.H., had never attended car shows with him. We affirm the

circuit court’s order.

       This court does not reverse a denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. E.g., Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. A finding

is clearly erroneous when, although there is evidence to support it, after reviewing the entire

evidence, we are left with the definite and firm conviction that a mistake has been

committed. Id., 486 S.W.3d 757. In making a determination on a claim of ineffective

assistance of counsel, this court considers the totality of the evidence. E.g., State v. Harrison,

2012 Ark. 198, 404 S.W.3d 830.



       2
          Luper does not challenge the circuit court’s rulings on the six other claims raised in
his petition. Claims raised below but not argued on appeal are considered abandoned. E.g.,
Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam).
       3
           To avoid confusion, we will refer to Robin Luper by her first name.


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       On review of claims of ineffective assistance of counsel, this court follows the

standard set forth by the Supreme Court of the United States in Strickland v. Washington,

466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, the petitioner

must show that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced his defense. E.g., Doty v. State, 2016 Ark. 341.

       Under the performance prong of the Strickland test, the petitioner must show that

counsel’s performance was deficient. E.g., Decay v. State, 2014 Ark. 387, 441 S.W.3d 899.

This factor requires a showing that trial counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the

United States Constitution. Id., 441 S.W.3d 899. The courts acknowledge a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional

assistance. See, e.g., Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Accordingly, the

petitioner has the burden of overcoming this presumption by identifying specific acts or

omissions of counsel, which, when viewed from counsel’s perspective at the time of trial,

could not have been the result of reasonable professional judgment. Id., 403 S.W.3d 55.

       Under the prejudice prong of Strickland, even if counsel’s conduct is shown to be

professionally unreasonable, the judgment will stand unless the petitioner can demonstrate

that the error had an actual prejudicial effect on the outcome of the proceeding. E.g., Lee

v. State, 2009 Ark. 255, 308 S.W.3d 596. In short, the petitioner must show “a reasonable

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

have been different.” See id., 308 S.W.3d 596 (quoting Strickland, 466 U.S. at 694). A




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reasonable probability is a probability sufficient to undermine confidence in the outcome of

the trial. E.g., Doty, 2016 Ark. 341.

       “Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700. Accordingly, we

need not address the Strickland components in a particular order or even address both

components of the inquiry if the petitioner makes an insufficient showing on one. See

Strickland, 466 U.S. at 697. The Court has stated that “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” Id.

                                        I. Financial Motive

       Luper first contends that counsel was ineffective for failing to call Charles Mayhew

to testify during the guilt phase of the trial. 4 According to Luper, Mayhew would have

testified that Robin “had made a statement concerning the sale of Luper’s 1967 Camaro to

the effect that when it sold, she would ‘have everything I need.’” Luper contends that this

testimony would have bolstered his assertion that the “false” allegation of rape was a means

for Robin to “obtain leverage” in her divorce action against him.

       Robin testified that, since 2005, she and Luper had lived together with her three

children, Luper’s youngest son from a previous marriage, and a child that she and Luper had

together. She stated that she and Luper divorced in 2013 and that she was not better off

financially after the divorce than she was when she and Luper were married. She testified



       4
           Mayhew testified for Luper in the sentencing phase of the trial.


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that their furniture, televisions, and appliances were sold at auction and that she and Luper

split the proceeds from the auction evenly.

       Robin stated that the house was in both her name and Luper’s name. She testified

that she will live in the home until the child she and Luper have together turns eighteen.

Robin stated when that child turns eighteen, the house will be sold, and she and Luper will

split the proceeds equally. She also stated that, because she lives in the home rent-free, Luper

is not obligated to pay child support for their child. Robin denied that the rape charge had

benefited her family.

       Robin testified that Luper’s oldest son died in December 2010 while in the Army

and that Luper was the beneficiary of his son’s $500,000 military life insurance policy. She

stated that, with that money, she and Luper paid off their mortgage, bought a new Yukon

vehicle, bought her parents a car, bought cars for S.H. and Luper’s teenaged son, and gave

money to the widow of Luper’s deceased son and to his sons’ grandparents. Robin testified

that she and Luper had built an addition to their house and installed an above-ground

swimming pool. She denied that she thought that “things might be different if [Luper] was

in prison for 30 or 40 years rather than going through the divorce process as a free man.”

Robin stated that Luper’s incarceration “didn’t get me anything . . . and actually made it

harder.”

       Luper testified and confirmed Robin’s testimony about how the insurance money

had been spent. He further testified that he had bought himself a 1967 Camaro for $28,500.




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       S.H. testified that Luper’s arrest did not help her financially. She said that, when

Luper left the household, he took the car he had given her. According to S.H., she no

longer had money to pay for college as she had before Luper was arrested.

       Luper maintains that Mayhew’s testimony would have disputed Robin’s testimony

that there was no financial motive for S.H. to claim that Luper had raped her. The State

points out that Mayhew testified on Luper’s behalf during the sentencing phase of the trial

and said that he is a friend of Luper’s. The State contends that Mayhew would be biased

because of his friendship with Luper and that anything Robin might have said to Mayhew

about selling the Camaro would not prove that she expected her financial issues to be

resolved from the sale of the vehicle.

       The jury determines not only the credibility of witnesses, but also the weight and

value of their testimony. See, e.g., Jones v. State, 2014 Ark. 448, 486 S.W.3d 743. Mayhew’s

testimony may have had an adverse effect on Robin’s credibility. On the other hand, the

jury might have dismissed Mayhew’s testimony, given his friendship with Luper. In short,

the jury might not have resolved the credibility determination in Luper’s favor.

       When assessing counsel’s decision not to call a witness, we must take into account

that the decision is largely a matter of professional judgment that experienced advocates

could endlessly debate. E.g., Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. The fact

that there was a witness who could have offered beneficial testimony is not, in and of itself,

proof of counsel’s ineffectiveness. Id., 385 S.W.3d 228. Luper has failed to show that, had

counsel presented Mayhew’s testimony, the outcome of the trial would have been different.




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See Moten v. State, 2013 Ark. 503 (per curiam). Thus, he has failed to satisfy the prejudice

prong of Strickland. The circuit court did not err in denying relief on this claim.

                                    II. Financial Demands

       In a corollary argument, Luper contends that counsel was ineffective for failing to

adequately explore Robin’s “financial demands.” He claims that, had counsel asked Robin

about her demands that he sign over the house and automobiles to her, there is a reasonable

probability that the outcome of the trial would have been different. We disagree.

       Luper testified that the day after the rape allegation had been made, he and Robin

began negotiations for their divorce. He stated that he refused to sign over the house, cars,

and household furnishings to Robin. He further stated that he refused to pay the household

debts. Robin testified that the household furnishings were auctioned with the proceeds split

equally between Luper and her. She also testified that when the house is sold, she and Luper

will split the proceeds evenly.

       Robin testified at length about financial matters on both direct and cross-

examination. Luper’s attorney specifically asked Robin if she “thought that things might be

different if [Luper] was in prison for 30 or 40 years rather than going through the divorce

process as a free man,” and she responded that she had not benefited financially from Luper’s

being in jail.

       Trial counsel told the jury in opening statement that the case was not about rape

allegations but was about money. In closing argument, trial counsel stated that the allegations

were a “money motivator” for Robin. The jury heard testimony about the Lupers’ finances

and divorce. Luper has failed to demonstrate that additional questioning about Robin’s


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“demands” would have had any effect on the outcome of the trial. The circuit court did

not err in denying relief on this claim.

                                     III. Walmart Videos

       Luper’s remaining arguments involve evidentiary matters. He asserts that counsel was

ineffective for failing to present at trial videos from Walmart showing that Luper and S.H.

were together the day after the rape. Luper acknowledges that both he and S.H. testified

that they went to Walmart together that day, but he asserts that the videos should have been

presented to show S.H.’s demeanor. The State responds that neither S.H. nor Luper testified

that S.H.’s demeanor was other than normal, and that in the absence of testimony that S.H.

displayed fear or emotion while at Walmart, there was nothing for the videos to rebut.

       This court will not grant an evidentiary hearing on an allegation that is not supported

by specific facts from which it can be concluded that the petitioner suffered some actual

prejudice. E.g., McDaniels v. State, 2014 Ark. 181, 432 S.W.3d 644. Here, the video

evidence would have been cumulative to testimony about the trip to Walmart. Luper has

failed to show that the outcome of the trial would have been different if counsel had

presented the videos. See, e.g., Simpson v. State, 355 Ark. 294, 138 S.W.3d 671 (2003)

(stating that the omission of cumulative evidence does not deprive the defense of vital

evidence). The circuit court did not err in denying relief on this claim without a hearing.

                                      IV. Phone Records

       Luper contends that counsel was ineffective for failing to obtain S.H.’s phone records.

He claims that, if counsel had procured the records, he could have shown the jury that S.H.




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was using her phone when the rape occurred and that the phone contained text messages

in which Robin had encouraged S.H. to falsely allege that he had raped her.

       Luper does not offer any proof that exculpatory evidence could have been found in

the phone records. Nevertheless, he claims that if a hearing is held, he will have subpoena

power to obtain and present the records. The strong presumption in favor of counsel’s

effectiveness cannot be overcome by a mere possibility that an evidentiary hearing might

produce evidence to bolster an allegation contained in a petition for postconviction relief.

E.g., McDaniels, 2014 Ark. 181, 432 S.W.3d 644; see also Hayes v. State, 280 Ark. 509, 660

S.W.2d 648 (1983) (per curiam) (stating that Rule 37 is not available to the petitioner who

wishes to have a hearing in the hopes of finding some ground for relief). The circuit court

did not err in denying relief on this claim without a hearing.

                                        V. Car Shows

       Finally, Luper contends that counsel was ineffective for failing to ask H.H., S.H.’s

sister, if he ever took her to car shows and for not calling his aunt and his brother to testify

that he had taken H.H. to car shows. He states that this testimony would rebut the

implications that he was singling out and isolating S.H. so that he could molest her.

       H.H. testified and was excused before S.H. was called. H.H. was not asked whether

she had attended car shows with Luper. S.H. testified that she did not “think” H.H. had

ever gone to car shows with Luper. Luper testified that he had taken H.H. to at least four

car shows. Any additional testimony would have been cumulative to Luper’s assertion that

he had taken H.H. to car shows. The failure to call witnesses whose testimony would be

cumulative to testimony already presented does not deprive the defense of vital evidence.


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E.g., Bond v. State, 2013 Ark. 298, 429 S.W.3d 185 (per curiam). Luper’s failure to

demonstrate prejudice precludes relief under Rule 37. E.g., Dansby v. State, 350 Ark. 60,

84 S.W.3d 857 (2002). The circuit court did not err in denying Luper relief on this claim.

                                         VI. Hearing

       In conclusion, we disagree with Luper’s contention that he was entitled to a hearing.

An evidentiary hearing is required unless the petition and the files and records of the case

conclusively show that the petitioner is not entitled to relief. Ark. R. Crim. P. 37.3(a).

Having reviewed the petition and the files and records of the case, we conclude that Luper

is not entitled to postconviction relief. The circuit court did not err in denying Luper’s

petition without a hearing.

       Affirmed.

       Jeff Rosenzweig, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee




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