Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                               FILED
                                                            Sep 27 2012, 9:22 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS                                  GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   J.T. WHITEHEAD
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


DAVID SHANE,                                       )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 68A01-1202-PC-74
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE RANDOLPH CIRCUIT COURT
                            The Honorable Jay L. Toney, Judge
                              Cause No. 68C01-0506-PC-43


                                       September 27, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
                                      Case Summary

       David Shane appeals the denial of his petition for post-conviction relief. We affirm.

                                           Issues

       Shane raises two issues, which we restate as:

              I.     whether he received ineffective assistance of trial
                     counsel; and

              II.    whether he received ineffective assistance of appellate
                     counsel.

                                           Facts

       Shane was charged with and found guilty of murder, conspiracy to commit murder,

Class C felony feticide, and Class C felony assisting a criminal. The relevant underlying

facts are:

                     On the morning of July 28, 1994, a neighbor of Nicole
              Koontz found her dead in the living room of her trailer. Koontz
              had been dead for several hours from a gunshot wound to the
              head, inflicted at close range. She had been shot three times
              through a pillow with a .25 caliber gun. As a result of her death,
              her 29 week old fetus also died. Two bullet casings and one live
              round of ammunition from a .25 caliber handgun were found at
              the scene.

                      A police investigation ensued. Robert Hicks, the
              boyfriend of Koontz, and his best friend and business partner,
              David Shane, were both questioned during the course of this
              investigation. During the initial interviews, Hicks and Shane
              recounted almost identical stories. Shane and Hicks had worked
              until 2:00 p.m. at a painting job. They returned to Shane’s home
              and worked on the yard. They drank beer, smoked pot, took
              showers, and eventually left home to go to two bars. They left
              the second bar at around 1:00 a.m., went to Taco Bell and
              returned home around 1:30 a.m., at which point they ate and
                                               2
went to bed. The next morning, they went to Hardees, and were
on their way to a paint job when Hicks received three pages in a
row from Tammy Hodson. Hicks called Hodson and learned of
Koontz’s death, at which point both men went to Koontz’s
trailer park. During the initial interrogation, Shane at first
denied having a .25 caliber handgun, but quickly retracted,
admitting that he kept a .25 caliber in a brief case in his
Suburban. He claimed the gun had sentimental value, and had
been used for target practice at the residence of Hicks’s parents.
 He consented to a search of his truck, in which a .25 caliber
casing was found. A subsequent search of Hicks’s parents’
residence turned up three spent shell casings.

        On August 8, Shane returned to the police station and
changed his former statement. At this point, he told the officer
that he had concocted the previous story with Hicks. He now
stated that after Hicks and Shane returned home from Taco Bell,
Hicks left again to go to Koontz’s to have sex.

        On May 4, 1995, Shane was again questioned. At this
point, he had been arrested for feticide and murder, and he again
changed his story. This time, he claimed that after arriving
home from Taco Bell at around 11:00 p.m., Shane drove Hicks
to Koontz’s house on a motorcycle. They parked in the back,
and Hicks told Shane to wait for him while he checked to see if
Koontz would have sexual intercourse with him. Shane watched
Hicks go up to the door and go in. He heard nothing inside the
trailer. Hicks came out of the house a couple of minutes later,
acting flustered, and they returned home around 1:30 a.m. The
next morning, on the way to work, Hicks told Shane that
something bad had happened, pulled out a gun, and told Shane
that he had to get rid of it. They drove to a remote country pond
and disposed of the gun.

       Shane identified the pond in which the gun had been
thrown. Investigators recovered the gun, and subsequent testing
showed that the bullets and casings from Koontz’s house,
Shane’s car, and Hicks’s parents’ residence were all fired from
this gun. The autopsy revealed that Koontz had probably died in
the early morning of July 28, 1994, several hours before her
body was discovered. An investigation of the crime scene

                                3
             revealed no evidence of robbery, but fresh marks on the door
             frame suggested a forced entrance.

                    Shane and Hicks were childhood friends and owned a
             business together. Hicks often lived with Shane and each of
             them served as best man in the other’s wedding. Shane and
             Hicks spent most of their free time together, and had a close
             relationship.

                    At trial, several witnesses testified about the violent
             relationship between Hicks and Koontz. Hicks at one point
             became so violent that Koontz was hospitalized. Another time,
             Koontz stabbed Hicks in the hand. Several witnesses testified
             that Koontz was afraid of Hicks, telling her friends “[i]f I ever
             get killed in my living room on my couch [ ] Rob Hicks
             probably has something to do with it.” Elizabeth Bentley, a
             neighbor, testified that the night before the murder, Koontz
             came over to her house to complain about an argument with
             Hicks about the baby’s room. Koontz told Bentley that she
             became so mad that she had wet her pants.

                    Jessica Daniels, a close friend of Shane’s, testified as to a
             conversation between herself, Shane and Hicks two nights
             before the murder. Hicks began to talk of killing Koontz, and
             said “yeah, you tell her about it, David.” Shane told Daniels that
             Hicks wanted to go and blow “Nickie’s” head off one night, and
             wanted Shane to take him there.

                     Amy Case, Shane’s ex-wife, also testified at Shane’s
             trial. Case testified that Shane hated Koontz. She said that she
             had overheard a conversation between Hicks and Shane in
             which Hicks said he was so mad at Koontz, he wanted her dead,
             and Shane responded “it could be done, we could do that.” She
             also recounted an overheard conversation between Shane and
             Hicks on how to commit the “perfect murder” and get away with
             it.

Shane v. State, 716 N.E.2d 391, 394-96 (Ind. 1999). At the conclusion of the May 9, 1997

trial, a jury found Shane guilty as charged. Convictions were entered on each count, and


                                              4
Shane was sentenced to sixty years, with four years suspended, for murder, fifty years, with

four years suspended, for conspiracy to commit murder, eight years, with four years

suspended, for feticide, and four years for assisting a criminal. The trial court ordered the

conspiracy and feticide sentences to be served concurrent to the murder sentence and ordered

the assisting a criminal sentence to be served consecutive to the murder sentence, for a total

executed sentence of sixty years.

       Shane filed a direct appeal arguing that there was insufficient evidence to support his

convictions, that the trial court erred in admitting certain evidence, and that his pre-trial jail

time was improperly credited against his sentence. In a 3-2 decision, our supreme court

rejected Shane’s arguments and affirmed his convictions and sentence. See Shane, 716

N.E.2d at 394.

       On June 16, 2005, Shane filed a petition for post-conviction relief, which was

amended in 2009. On February 12, 2012, after a hearing, the post-conviction court denied

Shane’s petition. Regarding Shane’s claims of ineffective assistance of trial and appellate

counsel, the trial court found:

               14. That at trial, counsel failed to object to final instruction
               sixteen, which advised the jury that prior inconsistent statements
               could be used to impeach the witness, and also as evidence in
               determining the guilt or innocence of the Defendant.

               15. That the jury may have been misled, and may have used
               prior inconsistent statements as substantive evidence.

               16. That there was sufficient other evidence to support the
               convictions of the Petitioner (Defendant below), such that the
               giving of the inaccurate portion of final instruction sixteen was
               harmless error.
                                              5
17. Trial counsel did not make the jury aware that Robert Hicks
was receiving use immunity for his testimony.

18. That Robert Hicks’ testimony essentially laid the foundation
for the admissibility of certain photographs and/or videotapes.

19. That trial counsel made a strategy decision not to raise the
issue of use immunity.

20. The Petitioner was not prejudiced by trial counsel’s strategy
decision not to raise the issue of use immunity.

21. Trial counsel did not argue Lisa Waddell’s testimony
regarding Petitioner’s trucks’ bright lights corroborated a
portion of Petitioner’s statement.

22. Petitioner had never discussed this issue with counsel prior
to the trial.

23. Trial counsel did not attempt to make this point with the
jury, as Waddell’s testimony and Petitioner’s statement did not
necessarily point to the innocence of the Petitioner.

24. There was no testimony by Amy Case in the Hicks trial to
the effect that Hicks had talked about how to commit the perfect
murder, as the Judge prohibited her testimony on the subject;
therefore, trial counsel could not have impeached Amy Case on
this issue.

25. Trial counsel failed to object to some testimony regarding
Hicks’ statements to police.

26. Petitioner believes that Hicks’ statements, although actually
denials of guilt, placed Petitioner with Hicks, providing a link
used by the State to support the conspiracy theory.

27. There was ample evidence other than Hicks’ statements to
show the close relationship between Hicks and the Petitioner,
such that Hicks’ statements were only cumulative as to this fact,
and did no actual harm to Petitioner.

                               6
              28. Appellate counsel failed to argue that the trial court erred
              when it permitted testimony, over objection, that the victim was
              afraid of Hicks and/or Petitioner prior to her death.

              29. That the deceased’s fear of Hicks may have been an
              advantage to Petitioner at trial, since the evidence showed that
              Hicks was the actual killer.

              30. That there was ample evidence to support the convictions,
              without evidence regarding decedent’s fear of Hicks and/or the
              Petitioner.

App. pp. 39-40. Shane now appeals.

                                          Analysis

       “The petitioner in a post-conviction proceeding bears the burden of establishing

grounds for relief by a preponderance of the evidence.” Kubsch v. State, 934 N.E.2d 1138,

1144 (Ind. 2010). Because a petitioner appealing the denial of post-conviction relief is

appealing from a negative judgment, to prevail on appeal, the petitioner must show that the

evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached

by the post-conviction court. Id. Further, although we do not defer to a post-conviction

court’s legal conclusions, the court’s findings and judgment will be reversed only upon a

showing of clear error—that which leaves us with a definite and firm conviction that a

mistake has been made. Id.

                        I. Ineffective Assistance of Trial Counsel

       “To establish a post-conviction claim alleging the violation of the Sixth Amendment

right to effective assistance of counsel, a defendant must establish before the post-conviction

court the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

                                              7
2052, 80 L.Ed.2d 674 (1984).” Id. at 1147. First, a defendant must show that counsel’s

performance was deficient by establishing that counsel’s representation fell below an

objective standard of reasonableness and that “‘counsel made errors so serious that counsel

was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth Amendment.’” Id.

(quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). A defendant must also show that

the deficient performance prejudiced the defense by establishing there is a reasonable

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

have been different. Id. “Further, counsel’s performance is presumed effective, and a

defendant must offer strong and convincing evidence to overcome this presumption.” Id.

                                   A. Jury Instruction

       Shane argues that trial counsel did not object to Final Instruction No. 16, which he

asserts was an incorrect statement of the law because it permitted the jury to consider prior

inconsistent statements and as substantive evidence. Specifically, the instruction provided:

                     Prior inconsistent statements are defined as statements
              made by the witness out of Court which differ from his
              testimony during this trial. Prior inconsistent statements may be
              considered by you for two purposes. You may use them to
              impeach the capacity for truthfulness of the witness who made
              the inconsistent statements. You may also consider the out-of-
              court statements as evidence in determining the guilt or
              innocence of the crime charged.

R. p. 190. Shane argues that, after Modesitt v. State, 578 N.E.2d 649 (Ind. 1991), “prior

inconsistent statements could only be used for impeachment.” Appellant’s Br. p. 13.




                                             8
        The State agrees that in Modesitt our supreme court overturned the long-established

rule that prior inconsistent statements could be used for impeachment and as substantive

evidence. Modesitt, 578 N.E.2d at 652 (overruling Patterson v. State, 263 Ind. 55, 324

N.E.2d 482 (1975)). The State argues, however, that Modesitt permitted the use of prior

statements as substantive evidence “if the declarant testifies at trial and is subject to cross

examination concerning the statement, and the statement is (a) inconsistent with the

declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial,

hearing, or other proceeding, or in a deposition . . . .” Id. at 653-54. In 1994, after Modesitt

was decided, the Indiana Rules of Evidence were adopted, and Indiana Evidence Rule

801(d)(1)(A) accomplished “by Rule what Modesitt did by decision.” Humphrey v. State,

680 N.E.2d 836, 839 (Ind. 1997).

        Shane does not acknowledge this exception announced in Modesitt or Indiana

Evidence Rule 801(d)(1)(A). Instead, he asserts that trial counsel had a duty to know the

relevant law and apply it to the case.1 Even if trial counsel was not aware that Patterson had

been overruled, we are not convinced that Shane was prejudiced by the instruction.

        Shane’s prejudice argument is based on the testimony of Jessica Daniel. At trial,

Daniel testified that she and Shane were close friends and that she was with Shane and Hicks

two days before the murder. Daniel testified that Hicks brought up the subject of killing


1
  Shane does not make any argument regarding whether an objection to this jury instruction would have been
sustained. See Baer v. State, 942 N.E.2d 80, 97 (Ind. 2011) (observing that a post-conviction court’s decision
regarding ineffective assistance for failure to object to instructions will be reversed only if the appellant can
show that the trial court was compelled as a matter of law to sustain the objection). However, because the post-
conviction court found the failure to object may have misled the jury, resulting in the use of the prior
inconsistent statement as substantive evidence, we resolve this argument on the prejudice prong of Strickland.
                                                       9
Koontz, that Hicks “wanted to go and blow Nickie’s f***ing head off one night[,]” and that

Hicks wanted Shane to take him there. R. p. 585. On cross-examination, Daniel testified that

Shane’s reaction was to shake his head like it was crazy. On redirect, the prosecutor asked

Daniel if she testified before the grand jury that Shane was the one who made the statement

about wanting to kill Koontz. Daniel stated that she could not remember. The prosecutor

then questioned Daniel about her testimony at Hicks’s trial indicating that she could not

remember if Shane actually made the statement. Daniel explained that it was during Hicks’s

trial that she remembered who made the statement. The prosecutor then asked, “So what you

are saying now is that you might have told the grand jury that [Shane] made the statement but

at the Hicks trial when you saw [Hicks] you remembered that it was [Hicks] that made the

statement.” Id. at 588-89. Daniel replied, “I am saying that I don’t remember what I told in

the grand jury. I don’t remember what I said. I do remember what I said in the Hicks trial

and I know who made the statement that day, June whatever, it was [Hicks].” Id.

       According to Shane, under the erroneous instruction, the jury could have considered

Daniel’s “original version” as substantive proof of Shane’s desire that the victim be killed,

affecting its consideration of whether Shane knowingly participated in Koontz’s death.

Appellant’s Br. p. 14. This argument fails for two reasons. First, it is not clear from the

evidence before us that Daniel actually told the grand jury that Shane made the statement.

What is clear is that Daniel did not remember what she told the grand jury and that at Hicks’s

trial she remembered that Hicks had made the statement. Further, to the extent the

prosecutor’s questions could be construed as establishing that Daniel made an inconsistent

                                             10
statement during her grand jury testimony, such a statement appears to fall within the

Modesitt exception because Daniel testified at trial and was subject to cross-examination

concerning her grand jury testimony, which was given under oath subject to the penalty of

perjury.2

        Shane does not direct us to any other testimony to which the instruction could have

applied. Thus, even if trial counsel’s failure to object to the instruction fell below an

objective standard of reasonableness, Shane has not established a reasonable probability that

the result of the proceeding would have been different had the jury been properly instructed

regarding the use of prior inconsistent statements as substantive evidence. The post-

conviction court properly rejected this claim for relief.

                                         B. Use Immunity

        Shane argues that trial counsel was ineffective for failing to inform the jury that Hicks

had been given use immunity for his trial testimony. At trial, Hicks’s testimony was used to

lay the foundation for the admission of photographs and a videotape of Hicks and Shane

together at a party in August 1994, and at Hicks’s wedding in February 1995, after Koontz’s

death. Although Shane acknowledges that Hicks did not say that Shane committed the crime,

he asserts that the implication that Hicks was choosing to help the State would have affected

the way the jury viewed the evidence. According to Shane, “[w]hile there probably was no

benefit to Hicks by testifying, if he refused to after being granted immunity the Court could



2
 Shane’s argument only refers to Daniel’s prior inconsistent statement from her grand jury testimony. He
makes no argument that either he or Hicks should be considered the declarant under the Modesitt analysis.
                                                   11
have found him in contempt and punished him with additional prison time.” Appellant’s Br.

p. 15.

         At the post-conviction relief hearing, trial counsel was questioned about whether a

jury should be made aware that a witness has received use immunity. Trial counsel stated,

“use immunity is really nothing. I don’t think the witness gains or loses anything by use

immunity. So I don’t know. It would just depend on what the situation was.” Tr. p. 8.

“Counsel is afforded considerable discretion in choosing strategy and tactics, and we will

accord those decisions deference.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001),

cert. denied. “A strong presumption arises that counsel rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.” Id.

         In this context, where Hicks’s testimony did not implicate Shane in the commission of

the crime and was used only to lay the foundation for the admission of photographic evidence

of the two men together socially after the murder, the failure to inform the jury of the grant of

use immunity was a reasonable strategic decision by trial counsel. Cf. J.J. v. State, 858

N.E.2d 244, 251 (Ind. Ct. App. 2006) (“Although there may be strategic reasons to not reveal

to the jury that D.S. had been given use immunity, trial counsel testified at the post-

conviction hearing that he had no strategic reason for not informing the jury of the use

immunity and recognized it would be a good defense strategy to inform the jury.”). The post-

conviction court properly rejected this basis for relief.

                                C. Lisa Waddell’s Testimony



                                               12
       Lisa Waddell testified that she was jogging in the mobile home park where Shane

lived from 11:30 p.m. until midnight on the night Koontz was killed. She testified that

between 11:45 p.m. and 11:55 p.m. she saw a silver or gray Suburban enter the mobile home

park, that she “got brighted” by the Suburban as it approached, and that the Suburban was

parked at Shane’s mobile home on a daily basis. R. p. 558. Shane argues that this testimony

corroborated his statement to the police that one of the headlights on the Suburban was out

and that trial counsel failed to use this testimony to adequately rebut the State’s argument that

Shane drove the motorcycle to Koontz’s trailer that night because it was less noticeable than

the Suburban.

       Shane recognizes that trial counsel did make an argument about the headlight being

out. But, according to Shane, trial counsel should have more thoroughly argued that they

took the motorcycle to Koontz’s that night because driving the Suburban with either a

headlight out or the brights on was an invitation to be pulled over or arrested or for the

Suburban to be impounded. Shane, however, does not direct us to any testimony by Waddell

that the Suburban’s brights were on because a headlight was out, and our review of the

record does not indicate any such testimony by Waddell. In fact, she testified that she

thought they might have “brighted” her because they did not see her and thought she was an

animal or a kid. Id. at 558. Based on the limited nature of Waddell’s testimony, Shane has

not established that trial counsel’s performance fell below an objective standard of

reasonableness as it related to using Waddell’s testimony to corroborate Shane’s statement to

police. The post-conviction court properly denied this claim.

                                               13
                                D. Amy Case’s Testimony

       At trial, Amy Case testified about a conversation in which Hicks and Shane discussed

committing the “perfect murder.” Id. at 746. Shane argues that trial counsel was ineffective

for failing to impeach Case with “available evidence,” which suggested that it was Hicks

who stated he knew how to commit the perfect murder. Appellant’s Br. p. 18. In support of

this argument, Shane relies on a portion of Hicks’s trial transcript in which Case was

questioned about this conversation. The prosecutor asked Case, “What, if anything, did you

hear the Defendant say about that incident . . . .” Ex. Vol. III p. 717. Hicks’s attorney

objected, and the prosecutor made an offer of proof asserting that Case would testify that “he

says ‘he knows how to do a murder and get away with it.’” Id. at 718.

       Shane directs us to no authority supporting the proposition that an attorney’s summary

offer of proof can be used as a prior inconsistent statement to impeach a witness’s subsequent

testimony. Without such authority, Shane has not established that trial counsel’s failure to

impeach Case based on her anticipated testimony from another proceeding fell below an

objective level of reasonableness. The post-conviction properly concluded that trial counsel

could not have impeached Case on this issue.

                             E. Hicks’s Statements to Police

       At trial, Indiana State Police Detective Brian Buroker testified regarding his interview

with Hicks the day after Koontz’s death. Detective Buroker testified that Hicks told police

that he was with Shane at the time of the murder. Shane argues that trial counsel should have

objected to this testimony on Sixth Amendment grounds because “Hicks’ statements included

                                              14
reference to Shane and were used against him at trial . . . .” Appellant’s Br. p. 18. Even if

trial counsel should have objected and such an objection would have been sustained, Shane

has not established that he was prejudiced by this evidence.

       Shane asserts that this testimony indicated that Shane and Hicks had conspired to

create an alibi and tied Shane in as a knowing and willing participant in the murder.

However, there was extensive testimony regarding Shane’s statements to police in which

Shane consistently indicated he was with Hicks that night. Eventually, Shane even admitted

he drove Hicks to and from Koontz’s trailer that night. Moreover, Shane’s own statements to

police clearly demonstrated that the men agreed to be alibis for each other. Detective

Buroker testified that, after Shane was indicted, Shane told Detective Buroker that he and

Hicks discussed what their alibi would be and that they had a conversation about not telling

police Hicks had left and gone to Koontz’s trailer. See R. p. 648. Thus, the fact that

Detective Buroker relayed statements in which Hicks used Shane as an alibi was merely

cumulative of other evidence that they had agreed to be each other’s alibis. Shane has not

shown that he was prejudiced by trial counsel’s failure to object to Hicks’s statement to

police on confrontation grounds. The post-conviction court properly rejected the argument.

                                  F. Cumulative Effect

       Shane argues that, although the claimed errors may not have prejudiced him

individually, the cumulative effect of the errors denied him a fair trial. In support of this

argument, Shane focuses on some of the evidence considered by our supreme court on direct

appeal to affirm Shane’s murder, conspiracy, and feticide convictions and asserts that,

                                             15
without this evidence, he would have been acquitted. This argument is unavailing because

most of Shane’s claims of deficient performance are not well taken and the two claims that

we did resolve on the prejudice prong of the Strickland analysis—the jury instruction issue

and the confrontation issue—are minor when taken in context. Grinstead v. State, 845

N.E.2d 1027, 1037 (Ind. 2006) (“Most of Grinstead’s contentions of deficient performance

are not well taken, and the modest nature of counsel’s one or two failings make them

insufficient to overcome the strong presumption that counsel performed adequately within

the meaning of the Sixth Amendment.”).3 This claim is unavailing.

                         II. Ineffective Assistance of Appellate Counsel

        Shane argues that appellate counsel should have challenged the admission of evidence

that Koontz was afraid of Shane and/or Hicks before she died. Appellant’s Br. p. 22. The

standard for gauging appellate counsel’s performance is the same as that for trial counsel;

therefore, to prevail on an ineffective assistance of counsel claim, Shane must show both

deficient performance and resulting prejudice. See Pruitt v. State, 903 N.E.2d 899, 928 (Ind.

2009). “Ineffective assistance of appellate counsel claims fall into three categories: (1)

denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.”

Carter v. State, 929 N.E.2d 1276, 1278 (Ind. 2010). Shane’s claim involves waiver for

appellate counsel’s failure to raise issues on direct appeal.



3
  Shane summarily asserts that trial counsel entirely failed to subject the prosecution’s case to meaningful
adversarial testing, depriving him of his Sixth Amendment right to counsel. See United States v. Cronic, 466
U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984). We summarily reject this assertion. See Ind. Appellate Rule
46(A)(8)(a) (explaining that an argument must contain the contentions of the appellant supported by cogent
reasoning).
                                                    16
        Ineffectiveness is rarely found in such cases. Bieghler v. State, 690 N.E.2d 188, 193

(Ind. 1997), cert. denied. “[W]hen assessing these types of ineffectiveness claims, reviewing

courts should be particularly deferential to counsel’s strategic decision to exclude certain

issues in favor of others, unless such a decision was unquestionably unreasonable.” Id. at

194. In assessing counsel’s performance, we look to see whether any unraised issues were

significant and obvious upon the face of the record and, if so, whether any such issues were

clearly stronger than the issue or issues appellate counsel decided to raise on direct appeal.

Id. “For purposes of ineffective assistance of appellate counsel claims, we judge the

reasonableness of appellate counsel’s strategic decisions based upon precedent that was

available at the time the brief was filed.” Williamson v. State, 798 N.E.2d 450, 454 (Ind. Ct.

App. 2003), trans. denied. If this analysis establishes deficient performance on counsel’s

part, we then analyze whether the issue or issues that counsel failed to raise clearly would

have been more likely to result in reversal or a new trial than the issue or issues that counsel

actually raised. Id. The ultimate issue under the prejudice prong is whether, but for

counsel’s error or errors, there is a reasonable probability that the outcome of the defendant’s

direct appeal would have been different. Id.

        Shane directs us to the testimony of Eva Koontz, Koontz’s mother, who testified that

Koontz thought Hicks and Shane “were trying to get her”4 and asserts that the trial court erred



4
  Two of the three citations to the Record cited by Shane are arguments by counsel. The only testimony to
which Shane specifically cites is Eva’s testimony. We, therefore, limit our analysis to this testimony. It is
worth noting, however, that the other evidence of Koontz’s fear of Hicks actually supported Shane’s theory
that Hicks, not Shane, killed Koontz.

                                                    17
in admitting evidence of Koontz’s state of mind, over his objection.5 R. p. 357. In support of

this argument, Shane cites Camm v. State, 812 N.E.2d 1127, 1139 (Ind. Ct. App. 2004),

trans. denied. In Camm, we observed, “[e]vidence of a victim’s state of mind is relevant and

admissible ‘(1) to show the intent of the victim to act in a particular way, (2) when the

defendant puts the victim’s state of mind in issue, and (3) sometimes to explain physical

injuries suffered by the victim.’” Camm, 812 N.E.2d at 1139 (quoting Hatcher v. State, 735

N.E.2d 1155, 1161 (Ind. 2000) (emphasis added in Camm)). Shane then points out that, in

Hatcher, our supreme court observed, “[a]lthough the nature of the relationship may be

relevant to show motive, we recently observed that motive does not constitute an exception to

the hearsay rule.” Hatcher, 735 N.E.2d at 1161(citing Willey v. State, 712 N.E.2d 434, 443

(Ind. 1999)).

        Shane does not provide any specific analysis of these factors, nor does he cite

authority that existed at the time his appellate brief was filed in February 1998. As such,

Shane has not shown that this unraised issue was significant and obvious upon the face of the

record based upon precedent that was available at the time the brief was filed. See Bieghler,

690 N.E.2d at 194; Williamson, 798 N.E.2d at 454. Thus, Shane has not established that

appellate counsel’s performance was deficient.




5
  It is not entirely clear that Shane objected to Eva’s testimony on this basis. We will assume, however, that
the issue was properly preserved.
                                                     18
       Even if he had made such a showing, he provides no argument regarding whether this

issue would have been more likely to result in reversal or a new trial than the issue or issues

that counsel actually raised. Instead, Shane summarily argues, “[c]ounsel was ineffective for

failing to include this issue in the direct appeal because the convictions would have been

overturned if it had been; a new trial is therefore the appropriate remedy herein.” Appellant’s

Br. p. 23. In the absence of such argument, Shane has not established that post-conviction

court improperly rejected this claim.

                                         Conclusion

       Shane has not established that the post-conviction court improperly denied his

petition. We affirm.

       Affirmed.

VAIDIK, J., and MATHIAS, J., concur.




                                              19
