Richard Dean Martin v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),

FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
Jun 01 2012, 9:08 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:
STACY R. ULIANA GREGORY F. ZOELLER
Bargersville, Indiana Attorney General of Indiana

JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

RICHARD DEAN MARTIN, )
)
Appellant-Petitioner, )
)
vs. ) No. 10A05-1110-PC-526
)
STATE OF INDIANA, )
)
Appellee-Respondent. )

APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Vicki L. Carmichael, Judge
Cause No. 10D01-1102-PC-44

June 1, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
 Richard Dean Martin was convicted of six counts of Class A felony child

molesting in Clark Superior Court and sentenced to an aggregate term of fifty years

incarceration. After his convictions were upheld on direct appeal, Martin filed a petition

for post-conviction relief, which the post-conviction court denied. Martin appeals and

presents two issues, which we restate as: (1) whether the post-conviction court clearly

erred in concluding that Martin was not denied the effective assistance of trial counsel,

and (2) whether the evidence was sufficient to support Martin’s convictions.

We affirm.

Facts and Procedural History

The facts underlying Martin’s convictions were set forth in our memorandum

decision on Martin’s direct appeal:

In 2004, Martin began living with C.C. and her three children, which
included eight-year-old S.G. Over the next three years, Martin repeatedly
molested S.G. Two or three times per month, Martin would enter S.G.’s
bedroom late at night and kiss S.G.’s breasts or vagina and rub his penis on
her face, neck, shoulders, and vagina. Each molestation lasted about ten to
fifteen minutes.
Martin and C.C. ended their relationship in November of 2006, and in
February of 2007, S.G. told her mother about the molestations. C.C.
informed the Clark County Sheriff’s Department, which, in turn, informed
the Indiana Department of Child Services (“DCS”). The DCS sent
investigator Chris Yarbrough to interview C.C., S.G., and Martin.
Yarbrough informed Martin of S.G.’s allegations, and Martin’s response
“was very firm that [S.G.] doesn’t lie.” While Martin did not admit the
allegations to Yarbrough, Martin did acknowledge to Yarbrough that S.G.
had “hunched” on Martin’s penis one night when he was in bed with her,
and that that “activity went on for approximately one minute and he
noted . . . that he probably could have stopped that activity sooner than he
did.” Yarbrough made a report based on those interviews and submitted
that report to the Clark County prosecutor.

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 The State charged Martin with six counts of Class A child molesting.
The State alleged that Martin had molested S.G. in the fall of 2004, in the
winter of 2004, in the winter of 2005, in March of 2006, in the summer of
2006, and in November of 2006. On August 14, 2008, Martin filed a
motion to suppress “any and all statements made by the Defendant to Chris
Yarbrough” on the grounds that those statements were “taken from him in
violation of his state and federal constitutional and due process rights,
including . . . Miranda warnings.” The trial court denied Martin’s request.
At the ensuing jury trial on August 19, the State introduced into
evidence Yarbrough’s and S.G.’s testimony, as well as the testimony of the
arresting officer. Yarbrough testified that S.G. had detailed to him
numerous molestations by Martin and that those molestations had occurred
“three times per month over the entire period they lived together.” Martin
objected to that testimony on hearsay grounds, but the trial court overruled
the objection. Yarbrough also testified as to Martin’s comments during
their interview, which Yarbrough stated he “consider[ed] to be a partial
admission of guilt to the allegations.” Martin objected “pursuant to the
motion that we had filed,” but, again, the trial court overruled Martin’s
objection. And S.G. likewise testified about the various times Martin had
molested her. Martin objected to her testimony “on . . . 404(b)” grounds,
which the trial court overruled.
At the close of trial, the court reviewed the final jury instructions with the
parties and gave each side the express opportunity to object to any of the
instructions. Martin did not object to any of the final instructions. The
court then instructed the jury “that the defendant may be convicted of Child
Molesting solely on the uncorroborated testimony of the victim [and that
the State] is not required to present evidence to corroborate the testimony of
the victim.” The jurors were then sent to deliberate, but about ten minutes
later the jury requested to hear S.G.’s testimony. S.G.’s testimony was
about an hour and ten minutes in length. After hearing the testimony, the
jury returned to deliberations. “Within minutes,” the jury found Martin
guilty as charged. The trial court entered its judgment of conviction
accordingly.

Martin v. State, No. 10A01-0812-CR-568, slip op at 1-2 (Ind. Ct. App. Aug. 20, 2009)

(record citations omitted), trans. denied.

Following his September 24, 2008 sentencing hearing, Martin filed a motion to

correct error claiming that the jury had been improperly instructed that the

3
uncorroborated testimony of the victim was sufficient to support a conviction. The trial

court denied this motion, and Martin appealed. On direct appeal, Martin claimed that the

trial court committed fundamental errors by: (1) admitting evidence regarding uncharged

acts of molestation against the victim, (2) admitting Yarbrough’s testimony that Martin

stated that the victim did not lie, and (3) instructing the jury that the uncorroborated

testimony of a victim was sufficient to support a guilty verdict. Id., slip op. at 2. We

concluded that the admission of the uncharged acts was harmless error, that Martin’s

statement was admissible as the statement of a party opponent, and that the jury

instruction was not fundamental error because the victim’s testimony was not wholly

uncorroborated. Id., slip op. at 3-11.

On February 26, 2010, Martin filed a petition for post-conviction relief, and the

post-conviction court held a hearing on this petition on April 11, 2011. The post-

conviction court issued findings of fact and conclusions of law denying Martin’s petition

on September 7, 2011. Martin now appeals.

Post-Conviction Standard of Review

Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

4
of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, 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. at 643-44.

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

of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App.

2011), aff’d of reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction

court’s legal conclusions, we review the post-conviction court’s factual findings under a

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge

the credibility of witnesses, and we will consider only the probative evidence and

reasonable inferences flowing therefrom that support the post-conviction court’s decision.

Id.

Ineffective Assistance of Trial Counsel

Martin contends that the post-conviction court clearly erred in denying his claim

of ineffective assistance of trial counsel. Our supreme court summarized the law

regarding claims of ineffective assistance of trial counsel in Timberlake v. State as

follows:

A defendant claiming a violation of the right to effective assistance
of counsel must establish the two components set forth in Strickland v.
Washington, 466 U.S. 668 (1984). First, the defendant must show that
counsel’s performance was deficient. This requires a showing that
counsel’s representation fell below an objective standard of reasonableness,

5
 and that the errors were so serious that they resulted in a denial of the right
to counsel guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense.
To establish prejudice, a defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord those decisions deference. A strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.
The Strickland Court recognized that even the finest, most experienced
criminal defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Isolated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render
representation ineffective. The two prongs of the Strickland test are
separate and independent inquiries. 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.

753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).

I. Failure to Obtain School Attendance Records

Martin first claims that his trial counsel was constitutionally ineffective because he

failed to obtain school records in order to impeach S.G.’s testimony. S.G. testified at trial

that in March 2006, her mother travelled to Oklahoma and her brother and sister were

staying with their father in Louisville, Kentucky, leaving her home alone with Martin,

who molested her on this occasion.

Martin’s trial counsel testified at the post-conviction hearing that he did attempt to

obtain the school attendance records, but school personnel informed him that such day-

to-day attendance records were unavailable. Instead, the school personnel told him that

the only attendance information available would be how many days a particular child had

6
missed. However, Martin’s post-conviction counsel was able to obtain attendance

records that indicate that S.G. and her sister were both in school on the days in question.

Martin therefore argues that had his trial counsel obtained and used these records to

impeach S.G.’s credibility, the jury would have known that S.G. was not telling the truth

with regard to this incident.

The State acknowledges that effective representation requires adequate pre-trial

investigation and preparation. See West v. State, 938 N.E.2d 305, 310 (Ind. Ct. App.

2010), trans. denied. But the State emphasizes that we should resist judging an attorney’s

performance with the benefit of hindsight. Timberlake, 753 N.E.2d at 605; Hernandez v.

State, 638 N.E.2d 460, 461 (Ind. Ct. App. 1994), trans. denied. Therefore, “[w]hen

deciding a claim of ineffective assistance of counsel for failure to investigate, we apply a

great deal of deference to counsel’s judgments.” Boesch v. State, 778 N.E.2d 1276, 1283

(Ind. 2002).

Given our standard of review, we are unable to say that trial counsel’s

performance fell below an objective standard of reasonableness. He clearly attempted to

obtain the school records at issue and was informed by school personnel at that time that

such records were unavailable. Martin now argues that, had his trial counsel attempted to

subpoena such records, then he would have discovered that the school personnel

informed him incorrectly that such records were unavailable because Martin’s post-

conviction counsel was able to obtain such records. But that post-conviction counsel was

able to obtain these records in 2010 does not necessarily mean that such records were

available when Martin’s trial counsel requested them. More importantly, even if they

7
were actually available, we cannot say that Martin’s trial counsel’s performance was

deficient simply because he did not disbelieve what school personnel told him regarding

the unavailability of such records.

Moreover, the attendance records were merely impeaching. In fact, with regard to

the March 2006 molestation when S.G.’s mother was out of state, S.G. also testified that

she could not remember whether her sister was in school or not at that time. The fact that

S.G.’s sister might have been home at that time, as opposed to out of town with her father,

does not make S.G.’s claim of molestation by Martin impossible. It simply means that

S.G. might have been confused about the precise timing of this incident. We therefore

cannot say that the post-conviction court erred in concluding that this evidence was not

exculpatory or that Martin’s trial counsel was constitutionally ineffective for failing to

obtain the school attendance records.

II. Failure to Object to Evidence

Martin also faults his trial counsel for failing to object to the introduction of

certain evidence. In order to prove ineffective assistance of counsel due to the failure to

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

that he was prejudiced by the failure. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind.

2010). A defendant must further prove that the failure to object was unreasonable and

resulted in sufficient prejudice such that there exists a reasonable probability the outcome

would have been different. Potter v. State, 684 N.E.2d 1127, 1132 (Ind. 1997).

We further note that, although Martin’s trial counsel testified at the post-

conviction hearing, Martin did not present any testimony of his trial counsel with regard

8
to his failure to object to the evidence Martin now complains of. We therefore may infer

that trial counsel would not have corroborated Martin’s claims of ineffectiveness with

regard to the failure to object. See Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App.

2010) (when trial counsel is not called as a witness to testify in support of a petitioner’s

arguments, the post-conviction court may infer that counsel would not have corroborated

the petitioner’s allegations), trans. denied.

Martin’s claims for failure to object to the admission of evidence all involve the

testimony of Yarbrough, the DCS investigator. Martin claims that his trial counsel

should have objected to four portions of Yarbrough’s testimony for various reasons. We

address each of these claims in turn.

A. Vouching Testimony

Martin first faults his trial counsel for failing to object to that portion of

Yarbrough’s testimony which he characterizes as vouching for the credibility of S.G.

Indiana Evidence Rule 704(b) provides, “Witnesses may not testify to opinions

concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations;

whether a witness has testified truthfully; or legal conclusions.” Such testimony invades

the province of the jury in determining what weight it should place upon a witness’s

testimony. Rose v. State, 846 N.E.2d 363, 367 (Ind. Ct. App. 2006).

Twenty-eight years ago, in Lawrence v. State, 464 N.E.2d 923, 925 (Ind. 1984),

our supreme court held that a child victim’s capacity to describe sexual events justified

“permitting some accrediting of the child witness in the form of opinions from parents,

teachers, and others having adequate experience with the child, that the child is not prone

9
to exaggerate or fantasize about sexual matters.” Such opinions were permissible to

facilitate an original credibility assessment of the child by the trier of fact, so long as they

do not take the direct form of ‘I believe the child’s story’, or ‘In my opinion the child is

telling the truth.’” Id.

This position, however, made “Indiana . . . a part of the minority of jurisdictions in

allowing some form of vouching of child witness testimony in child molestation cases.”

Hoglund v. State, 962 N.E.2d 1230, 1235 (Ind. 2012). Additionally, applying the

Lawrence rule was not always simple, and this court noted that “the line between the

impermissible vouching for the victim’s credibility on the one hand and rendering

permissible opinions with regard to a proclivity to not exaggerate or fantasize, on the

other hand, is an extremely fine one.” Hook v. State, 705 N.E.2d 219, 223 n.4 (Ind. Ct.

App. 1999) (quoted in Hoglund, 962 N.E.2d at 1233).

In Hoglund, our supreme court observed that Lawrence was decided before the

adoption of the Indiana Rules of Evidence, in particular Evidence Rule 704. Hoglund,

962 N.E.2d at 1234. Although some decisions of this court had viewed the Lawrence

rule to be an exception or relaxation of Evidence Rule 704, the Hoglund court noted that

“‘long-standing rules of evidence have been subsumed or eliminated by the adoption of

our new rules of evidence.’” Id. (quoting Joyner v. State, 678 N.E.2d 386, 389 n.2 (Ind.

1997)).

In Hoglund, the court revisited Lawrence in order to decide whether the rule from

that case was consistent with Evidence Rule 704. Id. The court wrote:

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 Aligning ourselves with the majority of jurisdictions that have considered
the matter we conclude that testimony concerning whether an alleged child
victim is not prone to exaggerate or fantasize about sexual matters is an
indirect but nonetheless functional equivalent of saying the child is telling
the truth. It is this aspect of Lawrence that we today expressly overrule as
being inconsistent with the mandate of Rule 704(b) which specifically
prohibits witnesses from testifying as to whether another witness testified
truthfully.
***
To summarize, we expressly overrule that portion of Lawrence allowing for
some accrediting of the child witness in the form of opinions from parents,
teachers, and others having adequate experience with the child, that the
child is not prone to exaggerate or fantasize about sexual matters. This
indirect vouching testimony is little different than testimony that the child
witness is telling the truth. As such it is at odds with Evidence Rule 704(b).
Further, we decline to carve out an exception to the rule for sex abuse cases.

Hoglund, 962 N.E.2d at 1236-37 (citations and quotations omitted).

In the present case, the alleged vouching of S.G.’s testimony occurred when the

State asked DCS investigator Yarbrough whether Martin had signed anything during his

interview. Yarbrough responded:

Yes. I also, based on the fact that, that I felt that [S.G.] had given a strong,
credible statement. Based on the fact of Mr. Martin’s behaviors and what I
considered to be a partial admission of guilt, I was concerned that he did, at
that point that he did have a problem in the area of perpetrating against
children. I requested that he sign a written Safety Plan whereby he would
agree with me that he would have no contact with any, anybody under
eighteen years old, any children, juveniles. And he did sign, sign that
Safety Plan at that point.

Trial Tr. p. 54 (emphasis added). Martin claims that this reference to S.G.’s statement as

“credible” and “strong” amounted to Yarbrough directly vouching for S.G.’s truthfulness

and that his trial counsel was ineffective for failing to object to this testimony.

We agree with the State, however, that the performance of Martin’s trial counsel

did not fall below an objective standard of reasonableness when he failed to object to the

11
statement that Yarbrough felt that S.G. had given a “strong, credible” statement.

Yarbrough’s testimony was not in response to a question regarding the strength or

credibility of S.G.’s statement. Instead, the question posed related to whether Martin

signed anything during his interview. If trial counsel had objected to Yarbrough’s

testimony at this point, it might have emphasized his response to the jury. Under these

facts and circumstances, trial counsel could have strategically chosen not to object in

hopes that the jury might pass over this testimony.1 We will not second-guess this choice

with the benefit of hindsight. See State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997)

(noting that we do not second-guess strategic decisions requiring reasonable professional

judgment even if the strategy or tactic, in hindsight, did not best serve the defendant’s

interests).

Moreover, it is not clear that, at the time of Martin’s trial, an objection to

Yarbrough’s testimony would have been sustained. Yarbrough stated that S.G. had given

a “strong, credible” statement. He did not directly vouch for the credibility of S.G.’s

testimony. In fact, S.G. had not yet testified at the time Yarbrough was on the stand. Nor

did Yarbrough directly state that he thought S.G.’s allegations were in fact true. At the

time of Martin’s trial, our supreme court had not yet abandoned the Lawrence rule

permitting forms of “indirect” vouching. Not only does this provide further support for a

strategic decision not to object to this portion of Yarbrough’s testimony, it also calls into

question whether such an objection, if made, would have been sustained. See Fisher v.

1
Again, at the post-conviction hearing, Martin did not ask his trial counsel any questions regarding his
failure to object, and we may presume that he would not have corroborated Martin’s claims of
ineffectiveness in this regard. See Oberst, 935 N.E.2d at 1254.

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State, 810 N.E.2d 674, 679 (Ind. 2004) (appellate counsel cannot be held ineffective for

failing to anticipate or effectuate a change in existing law).

B. Martin’s Demeanor

Martin also claims that his trial counsel should have objected to several portions of

Yarbrough’s testimony regarding his interview of Martin. Martin notes that Yarbrough

described “various concerning behaviors” by Martin, such as nervousness and pacing.

His trial counsel did, however, object to this testimony on grounds that Yarbrough could

not give an opinion regarding Martin’s guilt, which the trial court sustained. But Martin

notes that Yarbrough’s very next answer stated that he was concerned that Martin might

be “deceptive.” Trial Tr. p. 50. Yarbrough also testified that he interviewed Martin for

three hours and suggested that interviews with individuals who have something to hide

take several hours. Yarbrough further testified that “there was definitely something that

[Martin] was hiding.” Id. at 51. And, as noted above, when asked about the statement

Martin signed at the interview, Yarbrough stated that, based on S.G.’s statement,

Martin’s behaviors, and what he considered to be a “partial admission of guilt,” he was

concerned that Martin “did have a problem in the area of perpetrating against children,”

and that Martin signed the agreement not to have any contact with children. Id. at 54.

None of this testimony, however, appears to fall squarely within the ambit of Evidence

Rule 704, which prohibits witnesses from testifying “to opinions concerning intent, guilt,

or innocence in a criminal case; the truth or falsity of allegations; whether a witness has

testified truthfully; or legal conclusions.”

13
 Yarbrough’s testimony that he was concerned that Martin might be deceptive was

just a concern, not an opinion prohibited by Evidence Rule 704(b). Similarly,

Yarbrough’s testimony that Martin appeared to be “hiding” something during the

interview was not an opinion concerning guilt or innocence or whether anyone had

testified truthfully. See State v. Velasquez, 944 N.E.2d 34, 44 (Ind. Ct. App. 2011)

(concluding that testimony concerning demeanor does not amount to impermissible

vouching).

Yarbrough’s testimony concerning the length of his interview with Martin was

similarly unobjectionable. Yarbrough testified that he interviewed Martin for a little over

three hours. He also explained that, in his experience, “a lot of times it takes a long time

for them to want to talk about whatever the situation is. So, it’s not been uncommon over

my fifteen years to interview people for several hours because they initially don’t want to

talk about it and after a while they decide that they do.” Trial Tr. p. 50. This testimony

contains no opinion regarding guilt, innocence, or whether a witness had testified

truthfully. Nor is it an opinion concerning the truth or falsity of the allegations against

Martin. Because this testimony was not prohibited by Evidence Rule 704, Martin’s trial

counsel cannot be faulted for failing to object to this testimony.

Yarbrough did testify that, based on what he considered to be a partial admission

of guilt by Martin,2 he was concerned that Martin had a problem “perpetrating against

children” and that Martin signed an agreement not to have contact with children. Trial Tr.

2
Martin separately claims that his trial counsel should have objected to the testimony concerning
Martin’s “partial admission,” a claim we address below.

14
p. 54. This testimony comes close to being an opinion regarding Martin’s guilt, i.e.

because Yarbrough was concerned that Martin had a problem with perpetrating against

children, he was more likely to be guilty of molesting S.G. Still, the fact remains that

Yarbrough did not directly state that he thought Martin was guilty or that S.G.’s

allegations were truthful, although the jury could have drawn such an inference from

Yarbrough’s testimony. But as we have observed before, Evidence Rule 704(b) “‘does

not prohibit presentation of evidence that leads to an inference, even if no witness could

state [an] opinion with respect to that inference.’” Steinberg v. State, 941 N.E.2d 515,

525-26 (Ind. Ct. App. 2011), trans. denied (quoting 13 Robert L. Miller, Jr., Indiana

Practice § 704.201 at 589 (3d ed. 2007)). Because it is not clear that any objection would

have been sustained, we cannot fault Martin’s trial counsel for not making an objection to

this testimony.

Moreover, we find this case distinguishable from Bradford v. State, 960 N.E.2d

871 (Ind. Ct. App. 2012), which Martin cites in support of his argument. In that case, a

child protective services investigator testified that she had “substantiated sexual abuse,

meaning our office feels that there was enough evidence to conclude that sexual abuse

occurred.” Id. at 876. On appeal, we concluded that the investigator’s testimony did not

directly vouch for the truthfulness of the victim’s testimony. Id. But we further

concluded that the investigator’s testimony did constitute an opinion regarding the truth

of the allegations, because she testified that she had interviewed the victim and others and

concluded that the victim had, in fact, been sexually abused. Id. at 876-77. We therefore

concluded that this evidence was inadmissible. Id.

15
 In contrast to the investigator in Bradford, here Yarbrough did not directly testify

that Martin did or did not sexually molest S.G. He instead testified that he was concerned

that Martin “had a problem in the area of perpetrating against children.” Trial Tr. p. 54.

Although this might provide support for S.G.’s claims, it does not state that Martin did or

did not molest S.G. or that he believed that Martin molested S.G. Again, Evidence Rule

704(b) does not prohibit presentation of evidence that leads to an inference. Steinberg,

941 N.E.2d at 525-26.

We further disagree with Martin that there was no strategic reason for Martin’s

trial counsel’s failure to object to this testimony. We again note that Martin did not

question his trial counsel regarding this issue at the post-conviction hearing, and we may

therefore presume that trial counsel would not have corroborated Martin’s claims of

ineffectiveness.3 See Oberst, 935 N.E.2d at 1254. Additionally, Martin’s trial counsel

attacked Yarbrough’s testimony on cross-examination with questions trying to

demonstrate that Yarbrough did not keep an open mind when interviewing Martin.

Indeed, trial counsel even asked Yarbrough directly if he believed S.G. Trial counsel was

also able to get Yarbrough to admit that only 39% of molesting accusations are

substantiated by DCS, establishing to the jury that false allegations are not uncommon.

We again emphasize that we will not judge counsel’s performance with the benefit

of hindsight and that counsel’s strategic choices will not be deemed to be constitutionally

ineffective simply because they were unsuccessful. See Moore, 678 N.E.2d at 1261.

3
In his reply brief, Martin accuses the State of speculating with regard to whether Martin’s trial
counsel’s choice was strategic. But it was Martin’s burden at the post-conviction hearing to show that
this was not a strategic decision, and Martin failed to question his trial counsel in this regard.

16
Under these facts and circumstances, the post-conviction court could have reasonably

concluded that the performance of Martin’s trial counsel did not fall below an objective

standard of reasonableness for failing to object to Yarbrough’s testimony.

With regard to the second prong of the Strickland analysis, the post-conviction

court properly concluded that Martin failed to prove that, but for counsel’s alleged errors,

the outcome of his trial would have been different. Yarbrough certainly may have

implied that he believed S.G.’s allegations against Yarbrough, but Martin’s trial counsel

vigorously cross-examined Yarbrough, revealing that many accusations of child

molesting are not substantiated. And S.G. testified clearly that Martin repeatedly

molested her. And as the post-conviction court noted, Martin’s trial counsel put on a

vigorous defense and did not simply sit mute during trial. Trial counsel made numerous

objections, moved for a directed verdict, and presented the testimony of six witnesses.

Martin’s witnesses undermined S.G.’s credibility and established a motive for S.G. to lie

in order to help her mother against Martin, who had reported S.G.’s mother for allegedly

embezzling funds from her employer. After the jury’s verdicts, trial counsel filed a

motion to correct error. Under these facts and circumstances, we are unable to say that

the post-conviction court clearly erred in concluding that Martin failed to meet his burden

of establishing that his trial counsel was constitutionally ineffective for failing to object

to Yarbrough’s testimony on grounds that it violated Evidence Rule 704(b).

C. Hearsay Testimony

Martin next claims that his trial counsel was ineffective for failing to object to

hearsay statements by both S.G. and her mother which were admitted during Yarbrough’s

17
testimony. The State notes that Martin’s trial counsel did object when Yarbrough first

started relating S.G.’s out-of-court statements, but this objection was overruled.

Therefore, Martin’s trial counsel did make a hearsay objection, at least to some of

Yarbrough’s testimony. But even if trial counsel should have separately objected to the

other hearsay statements, Martin failed to demonstrate any resulting prejudice. Martin

fails to show Yarbrough’s testimony regarding S.G.’s statements were anything more

than simply cumulative of S.G.’s testimony. See Purvis v. State, 829 N.E.2d 572, 585

(Ind. Ct. App. 2005) (erroneous admission of evidence is harmless if it is cumulative of

other evidence), trans. denied.

Moreover, this case is readily distinguishable from Morris v. State, 628 N.E.2d

1256 (Ind. Ct. App. 1994), which Martin cites in support of his position that his trial

counsel was ineffective for failing to object to Yarbrough’s testimony recounting what

S.G. had told him. In Morris, the child victim did not testify at all, thus depriving the

defendant of the ability to cross-examine the victim. See id. at 1260 (noting that

defendant was convicted solely on the basis of victim’s out-of-court statements). This is

certainly not the case here, where S.G. testified and was subject to a vigorous cross-

examination by Martin’s trial counsel.4

Martin also complains that his trial counsel should have objected to Yarbrough’s

testimony regarding what S.G.’s mother told him. But this testimony referred only to

S.G.’s mother’s statement corroborating S.G.’s out-of-court statement that S.G. never

4
Martin’s reference to Taylor v. State, 903 N.E.2d 463 (Ind. 2009) is similarly unavailing, as that case
dealt with the admission of the victim’s out-of-court statement under the protected persons statute when
the victim was also available and did testify at trial.

18
slept in the bed with her mother and Martin. Even if Martin’s trial counsel should have

objected to this small portion of hearsay, we cannot say that the outcome of the trial

would have been different had he done so. Without any resulting prejudice, Martin has

not demonstrated that the post-conviction court clearly erred in this regard.

D. Martin’s “Partial Admission”

The last portion of Yarbrough’s testimony that Martin now claims his trial counsel

should have objected to concerns Martin’s statement to Yarbrough wherein he claimed

that S.G. had “hunched” Martin’s penis one night while she was in bed with him.

Martin acknowledges that we addressed this issue in his direct appeal, albeit under

the guise of a claim of fundamental error. Martin notes, however, that this does not

necessarily bar a claim of ineffective assistance of trial counsel based upon this particular

issue. This court recently noted that

there could be an unpreserved error raised on direct appeal that was found
not to have caused fundamental error, but nevertheless when later raised in
a post-conviction proceeding as part of an ineffective assistance claim the
cumulative effect of that error when combined with other errors may
amount to ineffective assistance.

Benefield v. State, 945 N.E.2d 791, 803 (Ind. Ct. App. 2011). But as we acknowledged

in Benefield, our supreme court has explained:

While we frame the standard for ineffective assistance of counsel and
fundamental error in somewhat different terms—appropriately so, since the
first is a standard of Federal Constitutional law and the second of state
criminal procedure—they will invariably operate to produce the same result
where the procedural posture of the claim is caused by counsel’s failure to
object at trial.

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McCorker v. State, 797 N.E.2d 257, 262-63 (Ind. 2003); accord Benefield, 945 N.E.2d at

803. Thus, while these two standards are different, they “may frequently lead to the same

result.” Benefield, 945 N.E.2d at 803.

Here, the two different analyses lead to the same result. As we explained in

Martin’s direct appeal:

[T]he references made by the witnesses to uncharged acts of criminal
conduct by Martin were, at most, harmless to Martin. Indeed, there were
only three possible references to uncharged conduct. First was the
testimony of Yarbrough and S.G. in which they each stated that Martin had
molested S.G. two or three times per month since 2004, which, when
compared with the charging information, leads to the inference that the
State did not charge Martin with every possible act of molestation. Second
was Yarbrough’s testimony that half of the molestations occurred in other
jurisdictions, which, again, implies that Martin was not charged by the
Clark County prosecutor with each act of molestation. And third was
Yarbrough’s testimony of Martin’s “admission” during their interview.
But neither of the first two references was expanded upon by the witnesses
or the State. And the third reference, Martin’s “admission” to Yarbrough,
is fairly innocuous when compared to S.G.’s testimony as to what Martin
did to her. Thus, we must conclude that the admission of the testimony
regarding uncharged conduct had a minimal impact on the jury, did not
deny Martin fundamental due process, and, therefore, was not fundamental
error.

Martin v. State, No. 10A01-0812-CR-568, slip op at 7 (Ind. Ct. App. Aug. 20, 2009),

trans. denied.

Whether framed as a question of fundamental error or as one of prejudice in the

context of a claim of ineffective assistance of trial counsel, the result is the same. The

reference to Martin’s admission was, at most, harmless and “fairly innocuous” when

compared to S.G.’s testimony. Therefore, even if Martin’s counsel should have objected

20
to this testimony, we cannot say that the result of Martin’s trial would have been any

different had he done so.5

IV. Failure to Object to Jury Instruction

Martin also claims that his trial counsel was ineffective for failing to object to an

instruction which informed the jury that the uncorroborated testimony of the victim was

sufficient to support a conviction for child molesting. In Ludy v. State, 784 N.E.2d 459,

460 (Ind. 2003), our supreme court disapproved of an instruction informing the jury, “A

conviction may be based solely on the uncorroborated testimony of the alleged victim if

such testimony establishes each element of any crime charged beyond a reasonable

doubt.” The Ludy court determined that such an instruction was “problematic” for three

reasons: “First, it unfairly focuses the jury’s attention on and highlights a single witness’s

testimony. Second, it presents a concept used in appellate review that is irrelevant to a

jury’s function as fact-finder. Third, by using the technical term ‘uncorroborated,’ the

instruction may mislead or confuse the jury.” Id. at 461.

Based upon Ludy, it is apparent that the trial court should not have instructed the

jury in Martin’s case that the uncorroborated testimony of the victim was sufficient to

support a conviction for child molesting. Martin did challenge this instruction on direct

5
Martin briefly argues that it was improper for Yarbrough to mention that he had prepared a report
regarding S.G.’s allegations and that, as far as Yarbrough was aware, Martin had not filed any
administrative challenges to this report. Tr. pp. 59-60. However, Yarbrough did not testify regarding the
content of his report. Moreover, we disagree with Martin’s suggestion that this denied him of his
presumption of innocence. The jury was instructed that Martin was presumed innocent and that the State
bore the burden of proving him guilty beyond a reasonable doubt. Accordingly, we cannot say that
Martin’s trial counsel was ineffective for failing to object to this portion of Yarbrough’s testimony.

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appeal under the guise of fundamental error. In our decision on Martin’s direct appeal,

we held:

[T]he erroneous instruction does not amount to fundamental error.
Although Martin asserts that S.G.’s testimony was the only evidence
actually relied upon by the jury, there is no decisive evidence to support
that suggestion. Further, as discussed above, the trial court did not err
when it permitted the State to introduce Martin’s statements to Yarbrough,
which, in turn, provided at least some degree of corroboration of S.G.’s
testimony. And our review of the totality of the jury instructions, as well as
the record, demonstrates that the trial court instructed the jury on all
elements of the charged offenses, the State’s burden of proof, and the jury’s
role is assessing witness credibility. Thus, we must conclude that the
giving of the now contested jury instruction was not fundamental error.

Martin, slip op. at 9-10

Again, although the question of fundamental error is not precisely the same as the

question of Strickland prejudice, we reach a similar conclusion. S.G.’s testimony was not

entirely uncorroborated, and the totality of the remaining jury instructions adequately

instructed the jury regarding the elements of the charged offenses, the State’s burden of

proof, and the jury’s role in assessing witness credibility. Under these facts and

circumstances, the post-conviction court properly concluded that Martin was not denied

the effective assistance of trial counsel based on his counsel’s failure to object to this

improper jury instruction.

V. Sufficiency of the Evidence

Martin next claims that the evidence is insufficient to support his convictions on

Counts I through III. Citing Koons v. State, 771 N.E.2d 685 (Ind. Ct. App. 2002), trans.

denied, Martin contends that a claim of insufficient evidence can be raised for the first

time in a petition for post-conviction relief. To be sure, the court in Koons stated that “a

22
conviction without sufficient evidence constitutes fundamental error, and fundamental

error may be raised in a post-conviction proceeding, within the rules of post-conviction

procedure.” Id. at 688 (citing Green v. State, 525 N.E.2d 1260 (Ind. Ct. App. 1988));

accord Badelle v. State, 754 N.E.2d 510, 543 (Ind. Ct. App. 2001).

However, in contrast to the language from these cases suggesting otherwise, our

supreme court in Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002), stated in no

uncertain terms that “it [is] wrong to review [a] fundamental error claim in a post-

conviction proceeding.” Instead, the fundamental error rule applies only to direct appeals.

Id. “In post-conviction proceedings, complaints that something went awry at trial are

generally cognizable only when they show deprivation of the right to effective counsel or

issues demonstrably unavailable at the time of trial or direct appeal.” Id. (citing Canaan v.

State, 683 N.E.2d 227, 235 n.6 (Ind. 1997)); see also State v. Hernandez, 910 N.E.2d 213,

216 (Ind. 2009) (“A petitioner for post-conviction relief cannot avoid the application of

the waiver doctrine by arguing that it does not apply because the challenge raises

fundamental error.”); Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005) (holding that where

petitioner made no argument that his claim was not known or available to him in prior

proceedings, his claim that he could present claim of fundamental error in successive

post-conviction petition was “simply wrong.”); Graham v. State, 941 N.E.2d 1091, 1097

(Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962 (“[f]reestanding claims of

fundamental error are not available on post-conviction review.”); Henderson v. State, 953

N.E.2d 639, 644 n.2 (Ind. Ct. App. 2011) (noting that, in Sanders, “our supreme court

23
plainly held that claims of fundamental error can only be raised on direct appeal, not in

postconviction relief proceedings.”).

Here, there is no indication that Martin’s claim of insufficient evidence was

somehow unknown or unavailable to him on direct appeal,6 and he makes no argument

regarding the ineffectiveness of his trial or appellate counsel in this regard. Because

Martin did not present his claim of insufficient evidence on direct appeal, he cannot now

present it as a freestanding claim of fundamental error in a post-conviction proceeding.

The post-conviction court properly denied Martin’s claim regarding insufficient evidence.

Conclusion

Martin has failed to meet his considerable appellate burden of showing that the

post-conviction court erred in concluding that Martin was not denied the effective

assistance of trial counsel. Certainly there were some things his trial counsel did that,

with the benefit of hindsight, we might now say could have been done differently. But

this is not the applicable standard. Even in those instances where Martin has shown that

the performance of his trial counsel may have been deficient, he has not established any

resulting prejudice. Lastly, his claim of insufficient evidence is not available in a petition

for post-conviction relief.

Affirmed.
6
We reject Martin’s claim in his reply brief that this issue was demonstrably unavailable simply because
the same counsel served as his appellate counsel and post-conviction counsel. Even if Martin’s post-
conviction counsel was unwilling or unable to couch a claim of insufficient evidence in terms of
ineffective assistance of appellate counsel for purposes of his post-conviction petition, see Caruthers v.
State, 926 N.E.2d 1016, 1023 (Ind. 2010) (arguing one’s own ineffectiveness is not permissible under the
Rules of Professional Conduct), this has no bearing on whether the issue was known and available to him
at the time of his direct appeal. We fail to see how the issue of sufficiency of the evidence was
unavailable to a defendant on direct appeal.

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ROBB, C.J., and BAILEY, J., concur.

25