      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),                             Feb 23 2018, 5:34 am
      this Memorandum Decision shall not be
                                                                              CLERK
      regarded as precedent or cited before any                           Indiana Supreme Court
                                                                             Court of Appeals
      court except for the purpose of establishing                             and Tax Court

      the defense of res judicata, collateral
      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
      Deidre R. Eltzroth                                       James B. Martin
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Stanley Short,                                           February 23, 2018
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               69A05-1707-PC-1530
              v.                                               Appeal from the
                                                               Ripley Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Respondent.                                     Jeffrey L. Sharp, Special Judge
                                                               Trial Court Cause No.
                                                               69C01-1405-PC-3



      Kirsch, Judge.


[1]   Stanley Short (“Short”) appeals the denial of his petition for post-conviction

      relief, contending that the post-conviction court erred in denying his petition.


      Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018    Page 1 of 12
      On appeal, he raises the following restated issue for our review: whether Short

      received ineffective assistance of his trial counsel on the basis that his trial

      counsel failed to object to certain evidence that he claims was admitted in

      violation of Indiana Evidence Rule 404(b).


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Short’s convictions as set forth by this court on his direct

      appeal are as follows:


              Short and L.C. married in 2010, but a short time later, L.C. filed
              for divorce. On May 25, 2011, L.C. came home from taking her
              children to school and found Short inside her house. Short was
              holding a hammer and said to L.C, “You’re gonna be with me.
              I’m gonna have you one last time.” Tr. at 64. L.C. told Short to
              leave, and then she started to dial 911 on her cell phone. Short
              refused to leave and grabbed her cell phone from her. L.C. tried
              to leave the house, but Short had locked the door. L.C. started
              screaming, and Short hit her in the side of the head with the
              hammer. Short then held the hammer up and said, “If you don’t
              have sex with me one last time, I’m gonna really hurt you.” Id.
              at 66. L.C. then put her hands up and said, “I’ll do what you
              want. Don’t hit me again[.]” Id.


              Short proceeded to place L.C. in handcuffs and forced her
              upstairs into a bedroom. Short told L.C. to take her pants off,
              which she did. But when she could not get her shirt off, he cut it
              off with a box cutter. Short then handcuffed L.C. to the bed and
              raped her. At some point, he stopped and told L.C. that she was
              going to perform oral sex on him. Short then put his penis in
              front of L.C.’s mouth, but she told him that she could not do it.

      Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 2 of 12
        L.C. told Short that she felt like she was going to vomit. L.C.
        begged Short to get something to stop the bleeding on her head,
        which he did. Short then started looking through pictures of L.C.
        on her cell phone, and he accused her of having sex with
        someone else, which she denied. Short then performed oral sex
        on L.C. while she was still handcuffed to the bed.


        After approximately one and a half hours, L.C. told Short that
        her mother was supposed to come over to her house that day and
        the two of them were going to run errands together. L.C. asked
        him whether she could call her mother to cancel their plans, and
        he agreed. Short dialed the phone for L.C. Her father answered,
        and she told him to tell her mother “not to come over.
        Something’s come up.” Id. at 77. L.C. was not able to convey
        anything to her father to indicate that she was in trouble. After
        the phone call, Short was concerned that L.C.’s mother might
        still come by the house looking for L.C. Short then used duct
        tape, handcuffs, and zip ties to secure L.C. to the bed, and he
        went outside to move her car out of sight.


        When Short came back after moving the car, L.C. told Short that
        she loved him and that they could be together if he would let her
        go. She asked him whether she could get cleaned up, and he
        untied her. Short was holding a hammer and watching L.C.
        while she took a bath. L.C. begged Short to put the hammer
        down, but he refused. L.C. then told Short that she had to go
        pay her electric bill that day or else her electricity was going to be
        shut off for nonpayment. Short did not believe L.C, but he
        listened while she called the electric company and confirmed that
        she had to pay the bill that day. L.C. told Short that she would
        not try to run away if he went with her to pay the bill, and he
        finally agreed.


        L.C. drove while Short sat in the front passenger seat of her car.
        First, L.C. withdrew money from the drive-through window at
        the bank near her house. Then L.C. started crying and told Short
Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 3 of 12
        that she needed to get some makeup from a nearby store. L.C.
        convinced him that she needed to look nice or else someone
        would “notice something’s wrong.” Id. at 89. Inside the store,
        L.C. tried to think of a way to get help without Short hurting her
        or someone else, but she did not come up with a plan. They
        bought some makeup and left the store. Then, as L.C. was
        driving, with Short in the passenger seat, L.C. saw a “great, big,
        huge” man and two other men standing near a hot dog stand. Id.
        at 91. So L.C. pulled the car up next to the men, jumped out of
        the car, and ran “right behind the biggest one.” Id. L.C. then
        began screaming, “He just raped me,” and she showed the men
        the blood on her head. Id . She pleaded for help and asked them
        to call the police. Short fled the scene, and it was several days
        before police found him, at L.C.’s residence, and arrested him.


        The State charged Short with rape, as a Class A felony; criminal
        deviate conduct, as a Class A felony; criminal confinement, as a
        Class B felony; battery, as a Class C felony; and domestic battery,
        as a Class A misdemeanor. A jury found him guilty as charged.
        The trial court entered judgment of conviction accordingly and
        sentenced Short as follows: thirty years for rape (Count One);
        thirty years for criminal deviate conduct (Count Two); fifteen
        years for criminal confinement (Count Three); six years for
        battery (Count Four); and one year for domestic battery (Count
        Five). The trial court ordered that the sentences on Counts One
        and Two would run consecutively, and the sentences on Counts
        Three through Five would run concurrent with each other and
        consecutive to the sentences on Counts One and Two, for an
        aggregate term of seventy-five years.


Short v. State, No. 69A01-1206-CR-268, *1-*2 (Ind. Ct. App. Feb. 26, 2013),

trans. denied.




Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 4 of 12
[4]   Short filed a direct appeal with this court alleging double jeopardy and

      sentencing issues. A panel of this court affirmed his convictions and sentence

      in a memorandum decision. Id. After filing a pro se petition for post-

      conviction relief, an amended petition was filed on October 14, 2016, by the

      State Public Defender on Short’s behalf.


[5]   An evidentiary hearing was held on Short’s petition, at which he presented the

      testimony of his trial counsel, John L. Kellerman (“Kellerman”). Kellerman

      testified that he had done thirty-five to forty criminal jury trials, had been a

      Ripley County public defender, and had been the judge of the Batesville City

      Court. P-CR Tr. at 7-8. Kellerman’s trial strategy was to show the jury that

      Short was involved in a “tumultuous consensual relationship” with L.C. and

      that the conduct that L.C. alleged was rape was actually consensual sex that

      occurred in the course of that tumultuous relationship. Id. at 4. Kellerman met

      with Short twelve to fifteen times in preparing a defense, and he visited Short

      roughly once a month until a firm trial date was set, at which time he visited

      Short once a week. Id. at 9. Kellerman testified that he believed that the trial

      court’s order on the State’s motion in limine sufficiently addressed the

      presentation of evidence regarding prior bad acts. Id. at 10. Kellerman stated

      that, although the State’s motion did not expressly articulate whether witnesses

      could testify regarding Short’s prior bad acts, Kellerman believed that the trial

      court addressed that concern in substance at the hearing on the motion in

      limine. Id. Kellerman further recalled that, at trial, the State did not

      specifically ask L.C. about any prior bad acts by Short, but that she had made


      Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 5 of 12
      some unsolicited statements that were non-responsive. Id. Additionally,

      Kellerman testified that when L.C. made comments about Short’s previous

      incarceration, “she brought it up in the context of him having been in and out

      of jail when she met him,” and that she did not specifically discuss the criminal

      conduct that resulted in incarceration. Id. at 5. Kellerman further expounded

      on his strategy concerning L.C.’s comments in the following testimony:


              [W]hen somebody testifies to it as kind of a side or as just a
              running part of their dialogue, it has been my experience for
              many years, over many trials, that many times, as long as it is not
              something that they bring emphasis to themselves, you don’t
              want to point it out to the jury as something that might be
              significant by bringing the proceedings to a halt with an
              objection. It has been my experience, if it’s just in the normal
              run of things that aren’t given special significance by the witness,
              then it might go in one ear and out the other, well the jury, they
              pay attention when the attorneys jump up and say I object to that
              and especially if you are trying to have something, especially if
              you are then trying in instruct them, ignore what was just said.
              You know, when you see objectionable behavior coming, you try
              to stop it before hand, such as if a person is trying to, is obviously
              getting ready to testify to hearsay, you object that before they can
              say it. Once the cat is out of the bag, I didn’t want to draw extra
              attention to it.


      Id. at 5-6.


[6]   At the conclusion of the hearing, the post-conviction court issued its order

      denying Short post-conviction relief. Short now appeals.




      Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 6 of 12
                                     Discussion and Decision
[7]   Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.

      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post-Conviction Rule 1(5).


[8]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      unmistakably and unerringly leads to a conclusion contrary to that of the post-

      conviction court. Id. We will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

      denied. The post-conviction court is the sole judge of the weight of the evidence

      and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

      App. 2008), trans. denied. We accept the post-conviction court’s findings of fact



      Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 7 of 12
       unless they are clearly erroneous, and no deference is given to its conclusions of

       law. Fisher, 878 N.E.2d at 463.


[9]    Short argues that the post-conviction court erred in denying his petition for

       post-conviction relief because he received ineffective assistance of trial counsel.

       Specifically, he contends that his trial counsel was ineffective for failing to

       object to testimony by L.C. regarding prior bad acts by Short. Short claims that

       this evidence was admitted in violation of Indiana Evidence Rule 404(b) and

       that, if Kellerman had objected to the evidence, such objections would have

       been sustained and the evidence would not have been admitted. Short asserts

       that the admission of this evidence damaged his credibility, which was crucial

       to this case, and he was, therefore, prejudiced by Kellerman’s failure to object

       to the testimony.


[10]   When evaluating a claim of ineffective assistance of counsel, we apply the two-

       part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.

       State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799

       N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the

       defendant must show that counsel’s performance was deficient. Id. This

       requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that the errors were so serious that they resulted

       in a denial of the right to counsel guaranteed to the defendant by the Sixth and

       Fourteenth Amendments. Id. Second, the defendant must show that the

       deficient performance resulted in prejudice. Id. To establish prejudice, a

       defendant must show that there is a reasonable probability that but for counsel’s

       Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 8 of 12
       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. Id.


[11]   Further, counsel’s performance is presumed effective, and a defendant must

       offer strong and convincing evidence to overcome this presumption. Williams v.

       State, 771 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what

       may or may not have been an advantageous trial strategy, as counsel should be

       given deference in choosing a trial strategy that, at the time and under the

       circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

       696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or

       bad tactics do not necessarily render representation ineffective. Shanabarger v.

       State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs

       of the Strickland test are separate and independent inquiries. Manzano v. State,

       12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.

       2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the

       ground of lack of sufficient prejudice . . . that course should be followed.’” Id.

       (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537

       U.S. 839 (2002)). To demonstrate ineffective assistance of counsel for failure to

       object, a defendant must prove that an objection would have been sustained if

       made and that he was prejudiced by counsel’s failure to make an objection.

       McKnight, 1 N.E.3d 193, 202 (Ind. Ct. App. 2013) (citing Wrinkles v. State, 749

       N.E.2d 1179, 1192 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002)).



       Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 9 of 12
[12]   During Short’s trial, L.C. testified regarding the tumultuous relationship

       between her and Short, Short’s prior incarceration, his criminal history, and his

       previous suicide attempts. Although Kellerman did not object during trial to

       any of this testimony, he testified at the post-conviction hearing that his defense

       strategy at trial was to show that, what L.C. claimed was rape, was actually

       consensual intercourse that occurred in the context of a stormy relationship. P-

       CR Tr. at 4. The evidence concerning the parties’ tumultuous relationship and

       Short’s previous suicide attempts were relevant to this strategy. Kellerman

       testified that, as to the testimony regarding Short’s criminal history and prior

       incarceration, he chose not to object so as not to emphasize the non-responsive

       testimony and that, in his experience, it was better not to object to such

       testimony and bring attention to it. Id. at 5. Therefore, Kellerman’s decisions

       not to object to L.C.’s testimony were reasonable strategic choices, and his

       performance was not deficient.


[13]   Based on the record before us, even assuming that any objections to L.C.’s

       testimony would have been sustained by the trial court, Short has not shown

       that he was prejudiced by Kellerman’s failure to object. At trial, the State

       presented sufficient independent corroborating evidence of L.C.’s report that

       Short attacked her with a hammer and raped her. A registered nurse who

       treated L.C. in the emergency room testified regarding L.C.’s injuries and that

       she performed a rape kit on L.C., confirming that L.C. and Short had

       intercourse, which was a fact that Short conceded. Trial Tr. Vol. I at 245-46,

       249-50; Trial Tr. Vol. II at 251. L.C. had bleeding and an abrasion on the left


       Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 10 of 12
       side of her head and red marks on her wrists and ankles as if she had been tied

       up. Id. at 250-51. The State presented photographs that showed L.C.’s injuries.

       State’s Exs. 16-19, 22-24, 30-41. The State also presented testimony from a

       police officer that, when he came in contact with L.C., she was very emotional,

       upset, and crying and that she had blood on her head, a bruise on her neck,

       marks consistent with handcuffs visible on her wrists, and ligature marks on her

       ankles. Trial Tr. Vol. II at 284.


[14]   The evidence discovered at the crime scene and presented at trial further

       corroborated L.C.’s account. The officers who investigated the crime scene

       found blood at the residence, a shirt that had been cut away, rope tied to the

       bed, a piece of duct tape that appeared to have lip prints left on it from lipstick,

       and zip ties. Id. at 289-90. One of the officers testified that the state of the

       residence and the items of evidence discovered there corroborated “a lot of

       what [L.C.]” reported to police in the emergency room. Id. at 290. Further, the

       State presented evidence that Short had escaped from the county jail with

       another inmate after being arrested on these charges. Trial Tr. Vol. I at 228-30.

       Such actions demonstrated Short’s consciousness of guilt. Due to the

       substantial independent evidence of Short’s guilt, we agree with post-conviction

       court’s conclusion that Short did not demonstrate a reasonable probability that,

       but for his trial counsel’s failure to object, the result of the proceeding would

       have been different. We conclude that the post-conviction court properly found

       that Short did not receive ineffective assistance of his trial counsel, and

       therefore, it did not err in denying Short’s petition for post-conviction relief.


       Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 11 of 12
[15]   Affirmed.


[16]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 69A05-1707-PC-1530 | February 23, 2018   Page 12 of 12
