MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jul 30 2019, 5:35 am

regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Henry L. Newton                                           Curtis T. Hill, Jr.
Carlisle, Indiana                                         Attorney General of Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Henry L. Newton,                                          July 30, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-1456
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
State of Indiana,                                         The Honorable David D. Kiely,
Appellee-Respondent.                                      Judge
                                                          The Honorable Kelli E. Fink,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          82C01-1404-PC-4



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019                   Page 1 of 20
[1]   Henry L. Newton (“Newton”) filed a pro se petition for post-conviction relief in

      Vanderburgh Circuit Court. The post-conviction court denied Newton’s

      petition, and Newton appeals pro se. Concluding that Newton has not

      established that he was subjected to ineffective trial and appellate counsel, we

      affirm.


                                  Facts and Procedural History
[2]   In our memorandum decision on Newton’s direct appeal, a panel of this court

      set forth the facts and initial procedural history underlying Newton’s

      convictions as follows:


              About midnight on April 13, 2012, thirty-six-year-old Henry
              Newton, armed with a gun, broke into eighty-two-year-old James
              Moll’s [“Moll”] home and threatened to kill him. Newton took
              Moll into the bathroom, tied his hands behind his back with an
              extension cord, and placed him on the floor on his back with his
              head against the end of the bathtub. Newton then took two debit
              cards from Moll’s wallet, demanded that Moll give him the PIN
              to each card, and left Moll’s house when Moll complied with his
              demand.


              Moll eventually freed himself around 8:30 the following morning
              and contacted the police. Evansville Police Department Detective
              Brent Melton [“Detective Melton”] was dispatched to Moll’s
              home. When Moll told him about the stolen debit cards,
              Detective Melton contacted Fifth Third Bank. Three days later,
              the Bank notified Detective Melton that someone had withdrawn
              money from Moll’s accounts by using the debit cards at two
              different ATM’s. One card was used at an ATM near Moll’s
              house about ten minutes after he was robbed, and the other card
              was used at an ATM at Casino Aztar about 9:30 the following
              morning. Evansville Police Department Detectives Tony Walker
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 2 of 20
        [“Detective Walker”] and Doug Hamner [“Detective Hamner”]
        watched the video surveillance footage from both ATM’s and
        both detectives recognized Newton as a potential witness in a
        prior unrelated case. Detective Hamner also recognized Newton
        from the local library where the detective worked as an off-duty
        security officer.


        Detective Melton arrested Newton at Newton’s hotel room at
        approximately 11:30 a.m. on May 9, 2012. A judge issued a
        search warrant at 3:50 p.m. that same day. Detectives Melton
        and Hamner then searched Newton’s room. During the search,
        the detectives found a fleece jacket with a distinctive New
        Orleans, LA, USA logo, a light blue button down shirt, a gray,
        red and white jacket, and a pair of black pants, all worn by
        Newton when he withdrew cash from the ATM’s using Moll[]’s
        debit cards as shown in the surveillance videos. Detective Melton
        left a copy of the search warrant in Newton’s motel room.


        On May 14, 2012, the State charged Newton with burglary, a
        class A felony, criminal confinement, a class B felony, robbery
        resulting in bodily injury, a class B felony, armed robbery, a class
        B felony, and theft, a class D felony. The State also alleged that
        Newton was a habitual offender.


        Before trial, Newton filed a motion to suppress all evidence
        found during the search of his motel room. Newton alleged that
        detectives violated his constitutional rights by searching his room
        before the search warrant was issued. The trial court denied
        Newton’s motion after a hearing. At trial, during the cross-
        examination of Detective Hamner, defense counsel pointed out
        that the detective’s report stated that he executed the search
        warrant at 3:15 p.m. but that the warrant was not issued until
        3:50 p.m. Therefore, according to defense counsel, Detective
        Hamner must have searched Newton’s motel room before the
        search warrant was issued. The detective explained that
        Newton’s room was not searched until after the warrant was
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 3 of 20
        issued. According to Detective Hamner, he distinctly
        remembered that Detective Melton had a copy of the search
        warrant with him when they searched the motel room. The
        detective further explained that the time on his report was
        incorrect. Thereafter, over Newton’s objection, the trial court
        admitted the evidence found during the search of Newton’s motel
        room.


        Also before trial, the trial court granted Newton’s Motion in
        Limine and instructed Detective Hamner that he could only
        testify that he recognized Newton in the Casino Aztar
        surveillance video because Newton was a potential witness in
        another unrelated investigation and they had also met at the local
        library where the detective was an off-duty police officer. Newton
        did not object to the detective’s testimony at trial. However,
        when Detective Melton testified that he recognized Newton in
        the police surveillance video, Newton objected and asked for a
        mistrial. Newton’s counsel told the trial court that an admonition
        would not correct the error. The trial court denied Newton’s
        motion and instructed Detective Melton, as it did Detective
        Hamner pursuant to the terms of Newton’s Motion in Limine,
        that he could only testify that he recognized Newton in the
        surveillance video because Newton was a potential witness in []
        another unrelated investigation.


        At trial, Moll testified that Newton tied his hands tightly behind
        his back with an extension cord and left him on his back with his
        head against the end of the bathtub. Moll[], who initially felt that
        he had no chance of loosening the cord, was subsequently able to
        scoot into the hallway and free himself after being tied up for
        approximately eight hours. When he freed himself, his wrists
        were swollen and hurt and his back hurt. A photograph
        introduced into evidence showed bruised and swollen wrists.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 4 of 20
              The jury convicted Newton of burglary as a class A felony,
              robbery as a class B felony, and theft as a class D felony. Newton
              pleaded guilty to being a habitual offender. The trial court
              sentenced him to thirty-five years for the class A felony,
              enhanced by thirty years for being a habitual offender. The court
              also sentenced Newton to twelve years for the class B felony.
              Specifically, the trial court explained at the sentencing hearing
              that it was not enhancing the sentence for the class B felony
              conviction because it did not believe it was appropriate to
              enhance more than one sentence. The court further sentenced
              Newton to two years for the class D felony and ordered the
              sentences to run concurrently for a total executed sentence of
              sixty-five years. Newton appeals.


      Newton v. State, No. 82A05-1301-CR-22, slip op. at 1-2 (Ind. Ct. App. Aug. 30,

      2013), trans. denied.


[3]   On direct appeal, Newton presented four issues: (1) whether the trial court

      abused its discretion in failing to suppress evidence of a search that occurred

      prior to the issuance of a search warrant; (2) whether there was sufficient

      evidence to support his convictions for burglary and robbery causing bodily

      injury; (3) whether Newton’s burglary and robbery convictions violated double

      jeopardy principles; and (4) whether the trial court abused its discretion in

      failing to grant a mistrial. A panel of this court rejected three of Newton’s four

      claims, holding: (1) Newton’s argument regarding the suppression of the

      evidence from the search was nothing more than an invitation for the court to

      reweigh the evidence, which the court cannot do; (2) the evidence was sufficient

      to support Newton’s convictions because Moll testified that his back and wrists

      hurt, and a photograph showed Moll’s wrists were bruised and swollen; (3)

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 5 of 20
      Detective Melton’s testimony at trial that he recognized Newton in the

      surveillance video was unlikely to have had a probable persuasive effect on the

      jury’s decision and therefore did not warrant a mistrial; and (4) the burglary and

      robbery convictions were in violation of double jeopardy principles because the

      convictions were based on the same bodily injury, and as a result, our court

      reduced the robbery conviction to a Class C felony, reduced the sentence for the

      Class C felony robbery conviction to a four-year advisory sentence, and ordered

      it to run concurrently to the burglary conviction; Id. at 3–5. Newton filed a

      petition to transfer his case to the Indiana Supreme Court, but that court denied

      the petition.


[4]   On April 3, 2014, Newton filed a pro se petition for post-conviction relief. In his

      petition, Newton claimed that he was denied the effective assistance of trial

      counsel and appellate counsel. Newton amended his petition four times, each

      time adding more claims of ineffective assistance of counsel. The post-

      conviction court held an evidentiary hearing on August 18 and 23, 2017. On

      November 15, 2017, Newton filed a motion for leave to amend his petition for

      post-conviction relief, which was denied because the post-conviction court had

      already conducted the evidentiary hearing on Newton’s petition. Both parties

      then submitted proposed findings of fact and conclusions of law. On March 18,

      2018, the post-conviction court issued its findings of fact and conclusions of law

      denying Newton’s petition for post-conviction relief. The post-conviction court

      concluded that:




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 6 of 20
        A review of the affidavit for the search warrant, identified as
        Petitioner’s Exhibit G, does not support Petitioner’s challenge to
        the finding of probable cause. The affidavit includes, but is not
        limited to, information describing the burglary and robbery of the
        victim and the subsequent use of the victim’s debit card taken
        during the burglary at two separate ATM machines. Detective
        Hamner identified Petitioner as the suspect in the video using the
        ATM card. A challenge to the probable cause finding by the
        judicial officer who signed the search warrant would not have
        been successful. Further, there is no evidence that the officers
        were dishonest or reckless in the preparation of the affidavit.


                                                 ***


        Petitioner argues that if counsel had pursued an interlocutory
        appeal of the Court’s denial of the Motion to Suppress, Detective
        Douglas Hamner’s testimony would not have been considered
        because Detective Hamner did not testify at the suppression
        hearing, but only testified at the trial. However, under Indiana
        Rules of Appellate Procedure, Rule 14, an interlocutory appeal of
        a denial of a motion to suppress is a discretionary appeal. The
        grounds for granting an interlocutory appeal are listed in Rule
        14(B)(1)(c)....


                                                 ***


        Under Rule 14 of the Indiana Rules of Appellate Procedure, the
        trial court would not have had to grant the request for an
        interlocutory appeal. It is unlikely that trial counsel would have
        been successful even if she had pursued an interlocutory appeal.


                                                 ***




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 7 of 20
        Detective Hamner testified based on his perception of the video[,]
        and his testimony was helpful to understand his testimony and
        also helpful to a determination of a fact in issue, that being the
        identity of the suspect in the case. It is unlikely that trial counsel
        would have been successful if she had continued to try to keep
        Detective Hamner’s testimony from being presented to the jury.


                                                 ***


        [The surveillance technical manager at Casino Aztar]’s testimony
        was based on his experience with the Casino Aztar system and
        based on his personal observations. Therefore, it was proper
        testimony to be presented to the jury. An objection to this
        testimony is unlikely to have been sustained.


                                                 ***


        The issues that Petitioner argued should have been raised by
        appellate counsel were not more likely to result in reversal or a
        new trial than the issues appellate counsel actually did argue on
        Petitioner’s direct appeal.


                                                 ***


        As to Petitioner’s argument that appellate counsel should have
        raise[d] insufficiency of the evidence arguments as to the element
        of the ‘breaking’ and the ‘intent to commit a felony’ as required
        for the offense of burglary, the jury can infer from the evidence
        that there was an intent to commit a felony. Petitioner’s use of
        the debit card at two ATM’s is evidence of his intent to commit a
        felony. The jurors could also infer that the suspect of the burglary
        committed a ‘breaking’ because the victim did not let anyone
        inside the residence and had not left any windows or doors open.
        While the description of the suspect by the victim alone would

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 8 of 20
              not have been enough for identification purposes, Detective
              Hamner’s identification of Petitioner on the video footage, along
              with the description by the victim, would have been enough
              together to prove identification.


                                                       ***


              Petitioner’s argument that Detective Melton was coached would
              also fail as an appellate issue. The testimony of Detective Melton
              was controlled and modified in a way to avoid having the jury
              hear about Petitioner previously being a suspect in another case.
              These efforts were made to protect Petitioner from any prejudice
              that might have resulted.


      Appellant’s App. Vol. II, pp. 32–38. Newton now appeals.


                           Post-Conviction Standard of Review
[5]   Our standard of review of claims that a post-conviction court erred in denying

      relief is well settled. The post-conviction petitioner bears the burden of

      establishing grounds for relief by a preponderance of the evidence. Willoughby v.

      State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. When a petitioner

      appeals the denial of a petition for post-conviction relief, the petitioner stands in

      the position of one appealing from a negative judgment. Id. On appeal, we do

      not reweigh evidence nor judge the credibility of witnesses; therefore, to prevail,

      Newton must show that the evidence in its entirety leads unerringly and

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

      court. Id. Where, as here, the post-conviction court makes findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 9 of 20
      do not defer to the court's legal conclusions, but the “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.” Henley v. State, 881

      N.E.2d 639, 644 (Ind. 2008).


                         Ineffective Assistance of Trial Counsel
[6]   Newton contends that his trial counsel, Barbara Williams (“Williams”), was

      ineffective for several reasons. “[C]ounsel’s performance is presumed effective,

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

      presumption.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). A claim of

      ineffective assistance of trial counsel requires a showing that: (1) Williams’s

      performance was deficient by falling below an objective standard of

      reasonableness; and (2) that the deficient performance prejudiced Newton such

      that “there is a reasonable probability that, but for William’s unprofessional

      errors, the result of the proceeding would have been different.” Strickland v.

      Washington, 466 U.S. 668, 694 (1984); Kubsch, 934 N.E.2d at 1147. Failure to

      satisfy either of the two elements will cause the claim to fail. French v. State, 778

      N.E.2d 816, 824 (Ind. 2002). When it is easier to dispose of an ineffectiveness

      claim on the lack of prejudice, then this is the course we should follow. Trujillo

      v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011). Moreover, “[i]solated

      mistakes, poor strategy, or bad tactics do not necessarily amount to ineffective

      assistance of counsel.” Herrera v. State, 679 N.E.2d 1322, 1326 (Ind. 1997)

      (citations omitted). We address each of Newton’s claims as to why Williams

      was ineffective in turn.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 10 of 20
                     I. Failure to Properly Challenge the Search of Motel Room

[7]   Newton first argues that Williams inadequately challenged the search of the

      motel room during the suppression hearing by failing to object to the lack of

      probable cause to support the search warrant. In order to prevail on a claim of

      ineffective assistance of counsel for failure to object, Newton must show that

      the objections would have been sustained. Kubsch, 934 N.E.2d at 1150.

      “Probable cause to issue a search warrant does not require a demonstration of a

      prima facie showing of criminal conduct, nor does it require a demonstration

      that contraband will be found on the premises to be searched. Probable cause to

      issue a search warrant need only show there is a probability of criminal

      activity.” Blalock v. State, 483 N.E.2d 439, 444 (Ind. 1985). The trial court’s

      determination of probable cause is given significant deference. Houser v. State,

      678 N.E.2d 95, 99 (Ind. 1997).


[8]   Here, Newton specifically argues that trial counsel was ineffective for failing to

      argue that the search warrant for his motel room was not supported by

      sufficient probable cause and that the officers were dishonest or reckless in

      preparing the affidavit for the search warrant. First, Newton contends that

      Williams should have objected to the finding of probable cause by the trial

      court. However, a review of the affidavit for the search warrant does not

      support Newton’s challenge to the finding of probable cause. Ex. Vol.,

      Petitioner’s Exhibit G. The affidavit describes the burglary and robbery

      incidents that occurred and the subsequent use of Moll’s debit card taken during

      the burglary at two separate ATM machines shortly after the incident. Detective

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 11 of 20
       Hamner identified Newton as the suspect in the surveillance video using the

       stolen debit card. At the suppression hearing, Williams “agree[d] that there was

       a finding of probable cause made by a judicial officer, and I’m not attacking or

       challenging that in any[]way.” Motion to Suppress/Jury Trial Tr. p. 34.

       Because the search warrant was supported by sufficient probable cause,

       Williams was not deficient for failing to advance this argument at trial.

[9]    Newton next contends during a motion to suppress hearing that the search of

       his motel room was conducted prior to the issuance of a search warrant.

       However, Newton unsuccessfully raised the issue on direct appeal, and

       therefore, he is barred from raising this issue in these post-conviction

       proceedings. Newton, slip op. at 3–4.


[10]   Newton also argues that Williams was ineffective for failing to pursue an

       interlocutory appeal of the court’s denial of the motion to suppress. However,

       under Ind. Appellate Rule 14, an interlocutory appeal of a denial of a motion to

       suppress is a discretionary appeal. Therefore, under Rule 14, the trial court

       would not have had to grant the request for an interlocutory appeal. It is not

       likely that Williams would have been successful even if she had pursued an

       interlocutory appeal, and therefore, Newton was not prejudiced.


                                       II. Failure to Object to Evidence

[11]   Newton next argues that Williams was ineffective at trial for failing to object to

       several pieces of evidence during trial. Our supreme court has explained that

       “in order to prevail on a claim of ineffective assistance due to the failure to


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 12 of 20
       object, the defendant must show an objection would have been sustained if

       made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007). And if the objection

       would have been sustained, Newton still must show that but for Williams’s

       failure to object, the result of his trial would have been different. Id. at 152.


       A. Testimony About Evidence Not Entered


[12]   Newton first argues that Williams was ineffective at trial for failing to raise an

       objection to witness testimony that assumed facts that were not entered into

       evidence. Newton contends that State’s Exhibit 28 was improperly admitted.

       State’s Exhibit 28 was a disc containing video footage from Casino Aztar which

       Detective Melton obtained from Casino Aztar. Detective Melton had given two

       discs from Casino Aztar to Detective Walker. Detective Walker had prepared

       another disc that had a QuickTime video file of the footage, which was

       identified and admitted as State’s Exhibit 28. The original disc was never placed

       into evidence as an exhibit. Adam Krewson, the surveillance technical manager

       at Casino Aztar who provided Detective Melton with the original disc, testified

       that State’s Exhibit 28 was an accurate depiction of the events that had

       occurred. The jury was shown the edited version, and the result of the trial

       would have been the same if the jury was shown the entire video from the

       original disc provided to Detective Melton by Krewson. Newton has failed to

       show how the edited version of the video prejudiced him and thus has not

       established that the unedited version of the video contains evidence that would

       have affected the outcome of his trial.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 13 of 20
       B. Inconsistent Testimony of Witness


[13]   Newton also argues that Williams erred in failing to object to the inconsistent

       testimony of Krewson. At trial, the prosecutor attempted to play the

       surveillance video, State’s Exhibit 28, on the Intellex1 player on the disk.

       However, the prosecutor was unable to play the video on the Intellex player

       and instead used a different application on the prosecutor’s computer to play

       the video. As a result of using this different application, the time stamp on the

       video changed to four hours later than the actual time. The actual time was

       9:31:04, and the time stamp on the video shown at trial stated that the video

       was recording at 13:31:04. Krewson testified at trial and explained why the time

       stamp was off by a couple of hours.


               Well I’ve seen this in the past, there’s a conflict of versions
               between the player embedded on the disk, and the solely installed
               [I]ntellex players, and that is that the time stamp can be off a
               little bit, right at a couple of hours, but the minutes remain the
               same.


       Motion to Suppress/Jury Trial Tr. pp. 211.


[14]   Newton contends that a lay person would not be competent to authenticate the

       accuracy of the time stamp, and thus, Williams was ineffective for failing to




       1
        The Intellex player was a proprietary player that Casino Aztar used. Motion to Suppress/Jury Trial Tr. pp.
       197; PCR Tr. pp. 99–100). A proprietary player “means you have to have that player to play that file.” PCR
       Tr. p. 100.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019                 Page 14 of 20
       object to Krewson’s testimony about the time stamp discrepancy. We disagree.

       Newton has not demonstrated any prejudice by the showing of the Casino

       Aztar surveillance footage that displayed an inaccurate time stamp. The jury

       was presented with Krewson’s testimony as to why the time stamp was off by a

       couple of hours. Additionally, surveillance footage from Old National Bank

       was also played for the jury, in which Newton could be more clearly identified.

       Both Detectives Melton and Hamner identified Newton in the Old National

       Bank video footage, and the clothing that Newton was wearing in the video was

       later found in Newton’s hotel room. The jury was free to examine whether

       Newton was the person in the surveillance video as eight separate cameras

       captured Newton. Therefore, there was substantial independent evidence of

       Newton’s guilt, and it is unlikely Newton was prejudiced by the time stamp

       discrepancy on Casino Aztar’s surveillance video.


                       Ineffective Assistance of Appellate Counsel

[15]   Newton also claims that his appellate counsel, Jesse R. Poag (“Poag”), was

       constitutionally ineffective. “Ineffective assistance is very rarely found in cases

       where a defendant asserts that appellate counsel failed to raise an issue on

       appeal.” Overstreet, 877 N.E.2d at 166. “One reason for this is that the decision

       of what issues to raise is one of the most important decisions to be made by

       appellate counsel.” Id. at 167. Indeed, our supreme court has warned that we

       “should be particularly sensitive to the need for separating the wheat from the

       chaff in appellate advocacy,” and we “should not find deficient performance

       when counsel's choice of some issues over others was reasonable in light of the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 15 of 20
       facts of the case and the precedent available to counsel when that choice was

       made.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006).


[16]   When we review claims of ineffective assistance of appellate counsel, we use

       the same standard applied to claims of ineffective assistance of trial counsel,

       i.e., Newton must show that Poag’s performance fell below an objective

       standard of reasonableness and that there is a reasonable probability that, but

       for Poag’s deficient performance, the result of the proceeding would have been

       different. Manzano v. State, 12 N.E.3d 321, 329 (Ind. Ct. App. 2014) (citing

       Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007)), trans. denied. Newton

       contends that Poag was ineffective by not raising five issues on appeal, and we

       address each in turn.

[17]   Newton argues that Poag was ineffective because he failed to raise viable issues

       on appeal that presented stronger arguments, which were significant and

       obvious on the face of the record. Newton specifically contends that Poag was

       ineffective for failing to argue on appeal that State’s Exhibit 28 was improperly

       admitted. Krewson gave Detective Melton a disc that contained video footage

       from the Aztar Casino, and Detective Melton handed the disc to Detective

       Walker. Detective Walker prepared another disc that had a QuickTime video

       file of the footage, which was identified and admitted as State’s Exhibit 28.

       However, the original disc was never placed into evidence as an exhibit. The

       time stamp on the disc was inaccurate. Krewson testified that State’s Exhibit 28

       was digitally the same as the disc he had provided to Detective Melton. State’s

       Exhibit 28 was properly admitted and considered by the jury. Any challenge on

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 16 of 20
       appeal to the admission of State’s Exhibit 28 would not have been successful.

       Even if the jury considered the video footage with the incorrect time stamp,

       there is a reasonable probability that the result of the trial would have been the

       same. Therefore, Newton was not prejudiced as a result of the inaccurate time

       stamp on the disc and any argument to the contrary is meritless.


[18]   Next, Newton contends that Poag was ineffective for failing to argue that the

       State never proved that Newton used some physical act to gain entry into

       Moll’s residence, which is necessary to prove the breaking element of Count I

       burglary resulting in bodily injury. Moll testified that Newton likely broke into

       his house by prying the window open. See Wilson v. State, 94 N.E.3d 312, 323

       (Ind. Ct. App. 2018) (“Using even the slightest force to gain unauthorized

       entry, which can include opening an unlocked door or pushing a door that is

       slightly ajar, satisfies the breaking element of the crime. Circumstantial

       evidence alone can prove the occurrence of a breaking.”). Moll did not let

       Newton inside the residence and had not left any windows or doors open.

       There was sufficient evidence presented to the jury to infer a “breaking” had

       occurred, and therefore, appellate counsel was not ineffective for failing to raise

       this argument in Newton’s direct appeal.


[19]   Further, Newton argues that Poag was ineffective when he failed to raise the

       issue that the State never provided evidence of Newton’s intent to commit a

       felony, specifically that Newton took or intended to take property from Moll.

       Newton made multiple demands for money from Moll at gunpoint. Newton

       checked for money inside a cabinet and behind the refrigerator and stove and

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 17 of 20
       did not find any money. Newton then stole two debit cards from Moll’s wallet,

       demanded the PINs, and used them shortly after. The jury could infer from the

       evidence that there was an intent to commit a felony. Because the evidence was

       sufficient to prove the breaking and intent to commit a felony elements for

       burglary, Poag was not ineffective for failing to raise these arguments in

       Newton’s direct appeal.

[20]   Newton also contends that Poag was ineffective when he failed to argue that

       Moll could not identify Newton as the person who entered the residence and

       committed the charged crimes since there was a difference between Moll’s

       description and Newton’s actual physical appearance. This argument does not

       have merit because Newton was identifiable in the Old National Bank

       surveillance footage. Detective Hamner identified the person on the video

       footage obtaining money from the ATM using Moll’s stolen debit cards as

       Newton. This coupled with the fact that the clothes that Newton wore in the

       surveillance footage were later discovered in Newton’s hotel room were enough

       together to prove identification. Therefore, Newton has not established that he

       was prejudiced by Poag’s failure to present this issue to our court on direct

       appeal.


[21]   Lastly, Newton argues that Poag was ineffective for failing to raise the claim

       that Detective Melton was coached to testify that he had knowledge of

       Newton’s description from a previous case in which Newton was a potential

       suspect. However, the testimony of Detective Melton was controlled and

       modified in a way to avoid having the jury hear about Newton previously being

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 18 of 20
       a suspect in another case. The trial court, upon both parties’ agreement,

       instructed Detective Hamner and Melton as follows:

               [T]he information that we do not want to come before the jury or
               the Court is instructing you not to bring before the jury is any
               comments about any prior criminal offense that the defendant
               may or may not have been involved in, and also the fact that the
               specific offense that you were investigating or part of the
               investigation, was his son, Mr. Phaoah Newton’s very serious
               offense that we had here.


       Motion to Suppress/Jury Trial Tr. pp. 95–96. These efforts were made to

       protect Newton from any prejudice that might have resulted. Furthermore,

       Newton’s counsel specifically agreed and wanted Detective Hamner to testify

       the way he did in order to avoid an appearance of impropriety. Newton’s

       argument to the contrary is invited error. See Booher v. State, 773 N.E.2d 814,

       822 (Ind. 2002) (“A party may not invite error, then later argue that the error

       supports reversal, because error invited by the complaining party is not

       reversible error”).


[22]   For these reasons, Poag’s decision not to raise the issues Newton thought were

       the stronger arguments was not deficient. Accordingly, the post-conviction

       court properly concluded that Newton was not denied the effective assistance of

       appellate counsel.


                                                 Conclusion

[23]   Based on the facts and circumstances before us, the post-conviction court did

       not clearly err when it rejected Newton’s claims of ineffective assistance of trial

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 19 of 20
counsel and appellate counsel. Accordingly, we affirm the judgment of the post-

conviction court denying Newton’s petition for post-conviction relief.


Vaidik, C.J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019   Page 20 of 20
