MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                   Oct 31 2017, 11:56 am

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


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

Jonathan O. Chenoweth                                    James B. Martin
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                             IN THE
      COURT OF APPEALS OF INDIANA

Dewayne Dunn,                                            October 31, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A03-1705-PC-936
        v.                                               Appeal from the Elkhart Circuit Court
                                                         The Honorable Terry C. Shewmaker,
State of Indiana,                                        Senior Judge
Appellee-Respondent                                      Trial Court Cause No.
                                                         20C01-1302-PC-10



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017               Page 1 of 19
                                             Case Summary
      Dewayne Dunn appeals the denial of his amended petition for postconviction

      relief (“PCR”). He argues that he is entitled to relief because he was denied

      effective assistance of counsel at his murder trial. Specifically, he argues that

      his trial counsel provided ineffective assistance by failing to consult with a

      forensic pathologist as to the manner of the victim’s death. Based on the record

      before us, we cannot say that the evidence as a whole leads unerringly and

      unmistakably to the conclusion that there is a reasonable probability that the

      evidence produced from consulting with a forensic pathologist would have

      changed the outcome of Dunn’s trial. Therefore, we affirm.


                                 Facts and Procedural History
[1]   The facts underlying Dunn’s murder conviction were presented in this Court’s

      memorandum decision in Dunn’s direct appeal as follows:


              In September 2008, Dunn lived in an apartment in Elkhart,
              Indiana with his girlfriend, Letha Sims (“Sims”)[, and her
              seventeen-year-old son Jamar Willie Sims (“Willie”)]. Their
              rental unit was located on the second floor of the apartment
              building, next door to another unit rented by Angel Torres
              (“Torres”). The units shared a common balcony [standing
              approximately six feet from the ground], with an exterior
              staircase leading to the ground.


              … [O]n the evening of September 3, 2008, Damen Collins
              (“Collins”) was riding his bike near the apartment building when
              he witnessed an altercation between Dunn and Sims taking place
              on the balcony. Specifically, he saw Dunn and Sims fighting and
              heard Sims screaming for help. Torres then came out of his

      Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 2 of 19
        apartment, but Dunn shoved him back inside. Dunn then
        knocked Sims halfway down the staircase, and when Sims tried
        to get away, Dunn grabbed her and dragged her back upstairs. At
        that point, Collins called the police and left the area. As he was
        leaving, Collins heard loud noises coming from the area of the
        fight, but he was unsure what they were.


        The first police officer arrived on the scene eight minutes after
        receiving the dispatch. At that time, Torres was lying [sprawled
        face down slightly on his left side with his right arm stretched out
        over a baseball bat] at the bottom of the staircase [with his head]
        in a pool of blood. He was unresponsive and his breathing was
        very labored. A baseball bat was positioned underneath Torres’s
        body, and Sims’s son and Dunn were standing nearby. Dunn
        had a cut under his knee, and he was very agitated and shouting
        that he didn’t do anything.


Dunn v. State, No. 20A05-1103-CR-160, 2011 WL 6807366, at *1 (Ind. Ct. App.

Dec. 22, 2011) (citations, quotation marks, and brackets omitted), trans. denied

(2012).


Dunn told police that Torres had a baseball bat and had hit him in the back

with it while they were on the balcony, and Dunn turned around and pushed

Torres. Torres was taken to the emergency room, where physicians determined

that he suffered a traumatic head injury, bleeding within the brain, and skull

fractures and a significant lung injury. Id. at *2. Toxicology tests revealed that

Torres’s blood alcohol level was .294 but did not detect the presence of any

controlled substances. Trial Tr. at 483-84. Torres died on September 5, 2008,

after being removed from life support.



Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 3 of 19
[2]   In April 2010, the State charged Dunn with murder. Dunn was represented by

      attorney Clifford Williams. At trial, the State’s theory was that Dunn and

      Torres were fighting on the balcony, and Torres fell down the stairs. At the

      bottom of the stairs, Dunn used an unidentified object to inflict Torres’s

      catastrophic and fatal injuries. The defense’s theory was that at some point

      during the fight on the balcony, Torres’s back was toward the stairs, and as he

      and Dunn struggled, Torres fell back, flipped over the railing, and landed on his

      head. According to the defense, after Torres fell he did not move, and the fall

      alone caused his injures.


[3]   In support of its case and in addition to other evidence, the State introduced

      testimony from two pathologists, police evidence technicians, and a blood

      spatter expert. Dr. Blair Chrenka, the pathologist who performed the autopsy

      on Torres, found that Torres had a gash on the back of his head, an abrasion on

      his right flank, broken ribs on the right-hand side, a broken clavicle, a contusion

      on the right lung, a lacerated liver, and several skull fractures in different areas.

      He determined that the cause of Torres’s death was blunt force trauma to the

      head, but he was unable to reach a conclusion regarding the manner of death

      because he did not know the circumstances in which Torres sustained his

      injuries. Id. at 882-83.


[4]   Forensic pathologist Dr. Scott Wagner testified that Torres’s skull was fractured

      in three areas: the sphenoid bone, the petrous ridge, and from the parietal bone

      on the top right of his skull down to the temporal bone. Id. at 946-47. Dr.

      Wagner explained that the sphenoid bone is located at the front of the skull,

      Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 4 of 19
      and Torres’s sphenoid bone had been “crushed like gravel,” which “would

      shred the brain and cause a great deal of bleeding.” Id. at 948. Dr. Wagner

      testified that Torres’s liver had “a huge tear right in the center of it.” Id. at 943.

      He also stated that there was a line of fracture extending from the first rib

      highest on the right side of Torres’s body all the way down to the tenth rib, and

      given that the first rib is very thick, the fracture to that rib was of the type that

      usually occurs “in severe trauma like an automobile crash.” Id. at 941. He

      stated that there were additional fractures to the ribs toward the middle of the

      back on the right side. Id. Torres also suffered a separate injury to his clavicle,

      which was fractured down the middle. Dr. Wagner opined that the cause of

      Torres’s death was “blunt force injuries of the head, chest, and abdomen” and

      that the manner of death was “homicide.” Id. at 951. He also testified that

      while a few of Torres’s contusions and scrapes on his hands and feet would be

      consistent with a fall down the stairs, the “deep injuries” to Torres’s skull and

      chest “would not be consistent with a simple fall down the steps.” Id. at 954.


[5]   The State also introduced DNA evidence identifying the blood found on

      various surfaces:


              [One] of Dunn’s shoeprints, in what was later determined to be
              Torres’s blood, was found on the second step of the staircase. A
              pool of blood on the pavement at the bottom of the staircase
              contained Dunn’s shoeprint, and Torres’s blood was found on
              the sole of Dunn’s shoe. Blood was also found on Dunn’s shorts,
              and DNA testing revealed a mixture of a major and minor
              profile. Dunn was the source of the major profile, and no
              conclusions could be drawn from the minor profile. Torres’s
              blood was found on the handle and middle portion of the
      Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 5 of 19
              baseball bat, and Torres’s cellular material was found on the
              barrel of the bat.


      Dunn, 2011 WL 6807366, at *1. Although there were small blood stains on the

      handle and middle portion of the bat, the amount of blood on the bat was scant.

      Trial Tr. at 835-37, State’s Trial Exs. 21, 22.


[6]   Indiana State Police crime scene investigator Dean Marks testified for the State

      as a blood spatter expert. Marks examined photographs from the crime scene

      and considered police and lab reports. Marks did not physically inspect the

      baseball bat. Trial Tr. at 923. There were photographs showing blood stains on

      the wall at the foot of the stairs, on the pavement, on the side of a nearby car,

      on the stairwell beam and railing post, and on the steps. Other photographs

      showed a pool of blood on the pavement emerging from Torres’s head and

      blood on his right shoulder and the front of his shirt. Marks testified that the

      blood spatter on the wall at the base of the staircase was consistent with a

      medium-force impact spatter that occurred directly in front of it near ground

      level. Id. at 900-01. He explained that impact spatter is a pattern that results

      when a blood source is impacted by an instrument. He stated that the blood

      spatter on the wall was not consistent with someone merely falling down the

      stairs or with someone stomping or stepping into a puddle of blood in front of

      the wall. He testified that the spatter patterns on the wall near the base of the

      stairs showed that a “good amount of energy [was] being applied to a blood

      source.” Id. at 920. Marks described the blood pattern on the pavement

      between the stairwell and the car to the left of Torres’s body as a cast-off spatter,

      Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 6 of 19
      which occurs when an object that has blood on it is swung or flung and the

      blood flies off the object. Although Marks could not identify the object that was

      the source of the cast-off spatter, he specified that the object had to have had a

      large enough surface area “to retain a good amount of blood.” Id. at 912.

      Marks testified that the blood spatter on the side of the car, on the pavement

      between the car and the stairwell, on the stairwell beam and railing post, and on

      the bottom two steps indicated that an “event” took place between the car and

      the stairwell and that the patterns of blood spatter would not have come from

      someone just falling down the stairs. Id. at 918-20. Marks explained that the

      drops of blood on Torres’s right shoulder and back and the front of his shirt

      indicated that Torres had been bleeding while he was upright and before he

      came to his final resting place and that the drops would make no sense if Torres

      had consistently lain in that position. Id. at 907-08.


[7]   The defense supported its theory with the testimony of Sims and her son Willie.

      Sims testified that she and Torres were drinking beer and ingesting cocaine in

      his apartment while Dunn was walking the dog. Id. at 513, 534. She explained

      that when Dunn returned, he entered Torres’s apartment, and the two started

      arguing. Id. at 513-14. The men went out on the balcony and continued to

      argue. Torres came back in the apartment, got a baseball bat, and went back

      out to the balcony. Id. at 519. Sims remained inside and heard the sound of

      someone being hit with a baseball bat and Dunn say, “[D]on’t hit me with the

      bat no more. Stop hitting me with the bat.” Id. at 520. She then heard a

      “boom, boom, boom,” ran out on the balcony, and saw Torres at the bottom of


      Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 7 of 19
      the stairs. Id. Dunn was still on the balcony, and she asked him what had

      happened. He told her that Torres “fell down the stairs[.]” Id. at 521. She

      testified that Dunn went down the stairs and tried “to get [Torres] up.” Id. She

      explained that Dunn “had [Torres’s] arm … pulling him up, telling him to get

      up.” Id. at 522. Sims admitted that she told a detective in March 2009 that

      Dunn had kicked Torres while Torres was at the foot of the staircase. Id. at

      538-39. However, she testified that the detective had insisted that Dunn must

      have kicked Torres, and Sims eventually agreed because she felt pressured. Id.

      She maintained that she did not see Dunn kick or otherwise inflict injury on

      Torres. Id. at 540.


[8]   Willie testified that he was inside Dunn’s apartment when he heard Dunn say,

      “[D]on’t hit me with that bat again. Don’t hit me with that bat.” Id. at 602.

      Willie said that he walked to the screen door and saw Dunn and Torres fighting

      on the balcony. Id. at 603. He saw Torres hit Dunn on the shoulder with the

      baseball bat. They began to wrestle over the bat, and then Torres fell down a

      stair or two, flipped over the banister, and landed face first on the pavement.

      Id. at 604, 609. Willie ran outside and down the stairs, and by the time he “got

      to the street he [saw] the police,” so he flagged them down. Id. at 604. Willie

      also testified that Torres did not move after he landed on the pavement. Id. at

      636.1




      1
        Dunn implies that Willie testified that Dunn did not kick or inflict injury on Torres, but he does not
      provide a citation to the transcript. Appellant’s Br. at 9.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017             Page 8 of 19
[9]    During closing argument, the prosecutor argued that Dunn had beat Torres

       with a blunt object but conceded that there was no evidence that the baseball

       bat found under Torres’s body was the murder weapon and no evidence as to

       how the bat got under his body. Id. at 1015. The prosecutor agreed that Torres

       fell down the stairs but admitted that it was unknown whether Dunn pushed

       Torres down the stairs or whether Torres tripped and fell down the stairs.

       However, the prosecutor argued that as a matter of common sense, logic, and

       science, Torres’s injuries were too severe to have been caused by a fall down the

       staircase and the blood spatter evidence showed that an event occurred at the

       bottom of the stairs. The prosecutor accused Sims and Willie of having lied

       based in part on the inconsistencies of their testimony with the conclusions of

       the expert witnesses. Id. at 1018. The prosecutor argued that Sims and Willie

       were not credible because Collins, an uninterested bystander, said that he saw

       Dunn and Sims fighting on the balcony, but neither Sims nor Willie mentioned

       that. The prosecutor pointed out that Sims testified that she and Torres were

       doing cocaine, but the toxicology report did not show that any controlled

       substances were present in Torres’s body; also, their testimony that they tried to

       wave down police was not corroborated by the police. The prosecutor told the

       jury that the case boiled down to whether they were going to believe the people

       who appeared to be lying or the expert testimony from the professionals.


[10]   In contrast, Dunn’s counsel urged the jury to believe Sims and Willie, observing

       that they had nothing to gain by defending Dunn because neither one was a

       part of Dunn’s life anymore. Counsel reminded the jury that no one had


       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 9 of 19
       testified that Dunn ever had the baseball bat or that he had hit Torres. Counsel

       asserted that Torres flipped over the railing, and with a blood alcohol level of

       .294 had no ability to brace himself for impact, and he landed on his head and

       fell on the bat, sustaining the injuries to his head, clavicle, and ribs. Counsel

       argued that Dunn must be innocent because he never fled the scene and none of

       Torres’s blood was found anywhere on Dunn’s body. Counsel suggested that

       the blood spatter may have been caused by the paramedics having stepped in

       the pool of blood near Torres’s head. Counsel noted that Dr. Chrenka had not

       been able to determine a manner of death and asserted that the blood spatter

       supported the defense’s theory of the case.


[11]   The jury found Dunn guilty as charged. The trial court sentenced Dunn to fifty-

       eight years with two years suspended. Dunn appealed, arguing that the

       evidence was insufficient to support his conviction. Another panel of this Court

       concluded that the evidence was sufficient and affirmed his conviction. Dunn,

       2011 WL 6807366, at *3.


[12]   In January 2013, Dunn filed a pro se PCR petition. In September 2016, the

       State Public Defender filed an amended PCR petition asserting that Dunn’s trial

       counsel provided ineffective assistance by failing to consult with a forensic

       pathologist prior to trial to determine the manner of Torres’s death. The

       postconviction court conducted an evidentiary hearing. Dunn supported his

       ineffective assistance claim with the testimony of trial counsel Williams and Dr.

       Thomas Sozio, a forensic pathologist. Williams testified that he did not

       consider consulting with a forensic pathologist prior to trial. PCR Tr. at 6. He

       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 10 of 19
       explained that he was focused on the lack of evidence that Torres had been

       beaten with the baseball bat, which he considered the strongest evidence in

       Dunn’s favor, and on the State’s position that the blood spatter patterns would

       not have been the result of a fall, which seemed sensible to him. Id. He stated

       that his focus on these two issues “obscured [his] judgment.” Id. Williams

       testified that if he had the case again, he would have another person examine

       the blood spatter evidence. Id. at 14.


[13]   Dr. Sozio testified that in his opinion, the cause of Torres’s death was blunt

       force trauma to the head. Id. at 31. Dr. Sozio testified that “the manner [of

       death] is best to be undetermined in this case.” Id. He stated that the manner

       of death “could have been an accidental death,” explaining that he had seen

       many instances where a person under the influence of alcohol had fallen down

       stairs or over a railing and died. Id. Dr. Sozio admitted that he was not a blood

       spatter expert but that his opinion regarding the manner of death was based in

       part on such evidence. Id. at 20-21. He testified that he reviewed the

       photographs from the crime scene, and he did not see any areas of cast-off

       blood spatter near Torres. Id. at 30.


[14]   When asked if Torres’s injuries were more likely the result of a fall or a beating,

       Dr. Sozio answered, “I highly favor a fall.” Id. at 33. According to Dr. Sozio,

       the skull fractures and the other injuries were consistent with a fall down the

       staircase because (a) the skull fractures were linear fractures, which are typical

       in falls; (b) the skull fractures were not depressed, which is typically caused by

       blunt force trauma from an object that is swung with high velocity; (c) the

       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 11 of 19
       fractures to Torres’s ribs were in a straight line on the right side; (d) rib fractures

       can cause contusions to the lungs; (e) the laceration to the liver was likely

       caused by one of the broken ribs; (f) the liver was severely fatty, indicative of

       long-term alcoholism, which in turn made Torres susceptible to “bad clotting

       times” and osteoporosis; (g) had Torres been beaten, there would have been

       multiple scalp lacerations rather than one, and he had only one small laceration

       on an area of the scalp usually associated with falls; (h) Torres had no defensive

       injuries; (i) the blood spatter on the wall, the car, and the stairway could have

       been caused by blood spewing from Torres’s scalp laceration when he hit the

       ground; and (j) Torres did not have any “pattern abrasions or contusions,”

       which Dr. Sozio would have expected to see had Torres been beaten with a

       blunt object. Id. at 25-36, 40-41.


[15]   On cross-examination, Dr. Sozio conceded that he had no explanation for some

       of the blood spatter evidence. Id. at 41. When shown his report, he admitted

       that Torres’s had a scalp laceration on an area of the scalp that is more

       indicative of an assault and admitted that the location of scalp injuries was not

       conclusive. Id. at 43-44. Dr. Sozio agreed that a chronic alcoholic could

       function quite normally with Torres’s blood alcohol level and admitted that he

       had no knowledge as to Torres’s level of functioning when he fell. Id. at 42-43.


[16]   In April 2017, the postconviction court issued an order denying Dunn’s PCR

       petition, which states in relevant part as follows:


               [Dunn] has failed in his burden to develop evidence that
               establishes that consulting with another expert would have
       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 12 of 19
               changed the outcome of the trial. The witness presented by
               [Dunn] simply provided another expert opinion as to the cause of
               death of the victim which lacks some credibility when considered
               in connection with the totality of the evidence presented at trial.


       Appealed Order at 8. This appeal ensued.


                                      Discussion and Decision
[17]   Dunn argues that the postconviction court erred in rejecting his claim that his

       trial counsel provided ineffective assistance. As a petitioner for postconviction

       relief, Dunn bore “the burden of establishing grounds for relief by a

       preponderance of the evidence.” Ritchie v. State, 875 N.E.2d 706, 713 (Ind.

       2007). Because Dunn bore the burden of proof, he is appealing from a negative

       judgment. Burnell v. State, 56 N.E.3d 1146, 1149-50 (Ind. 2016). To succeed in

       his appeal, Dunn must convince us that “the evidence as a whole leads

       unerringly and unmistakably to a decision opposite that reached by the post-

       conviction court.” Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Put

       another way, Dunn “must convince this Court that there is no way within the

       law that the court below could have reached the decision it did.” Stevens v.

       State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied (2003). “We review the




       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 13 of 19
       postconviction court’s factual findings for clear error, but do not defer to its

       conclusions of law.”2 Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013).


[18]   The Sixth Amendment to the United States Constitution protects the right to

       counsel and the right to effective assistance of counsel. To prevail on a claim of

       ineffective assistance of counsel, a petitioner must demonstrate both that his

       counsel’s performance was deficient and that the petitioner was prejudiced by

       the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)

       (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)), cert. denied (2001). A

       counsel’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002). To establish prejudice, the petitioner must show

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

       errors, the result of the proceeding would have been different. Id. “A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome.” Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to establish



       2
          Pursuant to Indiana Post-Conviction Rule 6, the court “shall make specific findings of fact, and
       conclusions of law on all issues presented.” Here, the postconviction court’s order simply restates the
       testimony elicited from attorney Williams and Dr. Sozio. Dunn asserts that we should treat such purported
       findings as surplusage. We observe that mere restatements of testimony are not considered true findings.
       Garriott v. Peters, 878 N.E.2d 431, 437 (Ind. Ct. App. 2007) (citing Augspurger v. Hudson, 802 N.E.2d 503, 515
       (Ind. Ct. App. 2004) (Sullivan, J., concurring in result)), trans. denied (2008); see also In re Adoption of T.J.F.,
       798 N.E.2d 867, 874 (Ind. Ct. App. 2003) (“A court or an administrative agency does not find something to
       be a fact by merely reciting that a witness testified to X, Y, or Z.”) (citing Perez v. U.S. Steel Corp., 426 N.E.2d
       29, 33 (Ind. 1981)). Accordingly, we will treat the restatements of testimony as surplusage. Garriott, 878
       N.E.2d at 438 (citing Perez, 426 N.E.2d at 33); see also Bowyer v. Ind. Dep’t of Nat. Res., 944 N.E.2d 972, 984
       (Ind. Ct. App. 2011); but see Pitcavage v. Pitcavage, 11 N.E.3d 547, 553 (Ind. Ct. App. 2014) (concluding that
       because court’s findings were specific, detailed, and clearly indicate its theory for its decision, its factual
       findings satisfied the “spirit of the requirement” for findings); Weiss v. Harper, 803 N.E.2d 201, 206 n.8 (Ind.
       Ct. App. 2003) (observing that a strict reading of Perez “appears applicable only to administrative fact-
       finding”).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017                Page 14 of 19
       either deficient performance or prejudice will cause the claim to fail, but most

       ineffective assistance of counsel claims can be resolved by a prejudice inquiry

       alone. French, 778 N.E.2d at 824.


[19]   Before addressing the specifics of Dunn’s ineffective assistance claim, we note

       that the judge who presided over Dunn’s original trial is also the judge who

       presided over the postconviction proceedings. In such a case, the judge is

       uniquely situated to assess whether trial counsel’s performance fell below an

       objective standard of reasonableness and whether, but for counsel’s

       unprofessional conduct, there was a reasonable probability that a different

       verdict would have been reached. McCullough v. State, 973 N.E.2d 62, 75 (Ind.

       Ct. App. 2012) (citing State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (noting that

       because judge presided both at original trial and postconviction hearing, judge

       was in “an exceptional position” to assess weight and credibility of factual

       evidence and whether defendant was deprived of fair trial)), trans. denied (2013).

       Thus, a postconviction court’s findings and judgment should be entitled to

       “greater than usual deference” when the postconviction judge is the same judge

       who conducted the original trial. Id.; accord McKnight v. State, 1 N.E.3d 193,

       200 (Ind. Ct. App. 2013); Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App.

       2013), trans. denied (2014).


[20]   Dunn contends that his trial counsel provided ineffective assistance by failing to

       consult a forensic pathologist before trial as to the manner of Torres’s death.

       We note that although effective representation requires adequate pretrial

       investigation and preparation, it is well settled that we should resist judging an

       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 15 of 19
       attorney’s performance with the benefit of hindsight. Badelle v. State, 754

       N.E.2d 510, 538 (Ind. Ct. App. 2001), trans. denied. Accordingly, counsel’s

       judgments regarding investigation and preparation are entitled to a great deal of

       deference. Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002). “[C]ounsel’s

       performance is presumed effective, and a defendant must offer strong and

       convincing evidence to overcome this presumption.” Ritchie, 875 N.E.2d at

       714. “In addition, establishing failure to investigate as a ground for ineffective

       assistance of counsel requires going beyond the trial record to show what the

       investigation would have produced.” McKnight, 1 N.E.3d at 200 (citing Woods

       v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied (1999)). “‘This is

       necessary because success on the prejudice prong of an ineffectiveness claim

       requires a showing of a reasonable probability of affecting the result.’” Id.

       (quoting Woods, 701 N.E.2d at 1214).


[21]   Here, the postconviction court concluded that Dunn failed to establish

       prejudice. Like the postconviction court, we too find that Dunn’s claim can be

       resolved based solely on whether the evidence produced from consultation with

       a forensic pathologist would have had a reasonable probability of affecting the

       outcome of Dunn’s trial. Dunn contends that a forensic pathologist would have

       provided evidence to support the position that “Torres’s injuries could have

       been caused by a fall.” Appellant’s Br. at 18. Dunn explains,


               Dr. Sozio testified that Torres’s injuries were consistent with a
               fall and inconsistent with a beating, that Torres likely had not
               been beaten with a blunt object, that Torres was more susceptible
               to severe injuries because of his alcoholism, and that the blood

       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 16 of 19
               spatter may have been caused by a fall. Expert testimony to that
               effect combined with the testimonies of [Sims] and Willie and the
               State’s inability to identify a murder weapon may well have led
               the jury to find that Torres’s injuries had been caused by a fall,
               not a beating. Given that this was the key issue at trial, the
               impact of Dr. Sozio’s testimony cannot be overstated.


       Id. Dunn maintains that with Dr. Sozio’s testimony, there is a reasonable

       probability that he would have been acquitted because the “jury did not know

       that Torres’s injuries were consistent with a fall, that Torres was more

       susceptible to injury due to long-term alcohol use, or that Torres’s body lacked

       telltale signs of a beating. Appellant’s Reply Br. at 5.


[22]   Although Dr. Sozio’s testimony may have been helpful to the defense’s theory

       of the case, when viewed in conjunction with the totality of the evidence at

       trial, his testimony is not so compelling that there is a reasonable probability

       that had it been offered the jury would have concluded that Torres’s injuries

       were solely the result of a fall. First, Dr. Sozio’s testimony is not as definitive

       as Dunn suggests. Notably, Dr. Sozio did not conclusively identify the manner

       of Torres’s death as an accident. Although Dr. Sozio testified that he favored a

       fall over a beating, he concluded that the manner of Torres’s death was “best to

       be undetermined in this case.” PCR Tr. at 31 (emphasis added). Dr. Sozio

       testified that Torres’s death “could have been” accidental, because Dr. Sozio

       had seen many instances where someone under the influence of alcohol had

       fallen down stairs or over a railing and died. Id. However, Dr. Sozio agreed

       that a chronic alcoholic could function quite normally at Torres’s blood alcohol


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       level and admitted that he had no knowledge as to Torres’s level of functioning

       when he fell. Id. at 42-43. Further, even though Dr. Sozio testified that it is

       “highly unlikely that Torres was struck by a blunt object,” he was referring only

       to Torres’s rib injuries. Id. at 37.


[23]   The State’s forensic pathologist testified in detail regarding Torres’s injuries and

       conclusively opined that the manner of death was homicide and that Torres’s

       injuries could not have been caused by a fall. The State’s blood spatter expert

       provided compelling testimony that supported the forensic pathologist’s

       conclusions. Marks testified that the blood spatter seen in multiple locations at

       the crime scene would not have occurred from someone just falling down the

       stairs, that the blood spatter on the wall indicated that an “event” occurred at

       the bottom of the stairs and that a “good amount of energy was being applied to

       a blood source,” and that the cast-off blood spatter indicated that an object with

       a large amount of blood on it had been swung or thrown. Trial Tr. at 920. Dr.

       Sozio admitted that he was not a blood spatter expert, and his opinion that he

       favored a fall was based in part on his assessment of the blood spatter evidence

       that was at odds with Marks’s. Dr. Sozio testified that he did not see any cast-

       off blood spatter on the pavement around Torres’s body. PCR Tr. at 30. He

       opined that some of the blood spatter on the wall, pavement, and car could

       have been thrown from a person hitting a pool of blood on the pavement or

       falling, but he admitted that he had no explanation for some of the blood spatter

       at the crime scene. Id. at 40-41. Also, Dr. Sozio admitted on cross-

       examination that Torres had a scalp laceration on an area of the scalp that is


       Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-936 | October 31, 2017   Page 18 of 19
       more indicative of an assault and conceded that the location of scalp injuries

       was not conclusive. Id. at 43-44.


[24]   In addition, while Dr. Sozio’s testimony would have provided some support for

       Sims’s and Willie’s testimony, his testimony was not definitive and their

       testimony suffered credibility issues. Parts of their testimony were in conflict

       with Collins’s and uncorroborated by the officers who first arrived at the scene.

       Sims testified that she and Torres had been doing cocaine, but according to the

       toxicology report, there was no cocaine in Torres’s body. Sims admitted that

       she had told a detective that she saw Dunn kick Torres, but claimed that that

       was a lie.


[25]   Finally, there were facts that supported the State’s common-sense argument

       that Torres’s injuries could not have been caused merely from the fall. The

       second-story balcony was six feet from the ground, yet Torres suffered severe

       injuries to three areas of his skull as well as his torso. Based on this record, we

       cannot say that the evidence as a whole leads unerringly and unmistakably to

       the conclusion that the evidence produced from consulting with a forensic

       pathologist would have changed the outcome of Dunn’s trial. See Wesley, 788

       N.E.2d at 1250. Accordingly, we affirm the postconviction court’s denial of his

       amended PCR petition.


[26]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.


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