MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jan 31 2019, 7:34 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jay M. Lee Laura R. Anderson
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Garrick Twiford, Jr., January 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-PC-1876
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
20D03-1605-PC-26
20D03-1004-FA-21
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019 Page 1 of 19
[1] Garrick Twiford, Jr. appeals the post-conviction court’s denial of his petition for
post-conviction relief. Twiford raises two issues for our review, which we
restate as follows:
1. Whether the post-conviction court erred when it
concluded that Twiford was not denied the effective
assistance of trial counsel.
2. Whether the court erred when it concluded that he was not
denied the effective assistance of appellate counsel.
[2] We affirm.
Facts and Procedural History
[3] From June to September 2009, Twiford lived with his sister and her husband
and children, including then six-year-old B.B. On December 29, B.B.’s mother
and step-father became concerned about B.B. after they had discovered that she
was doing “inappropriate” things with her brother. Trial Tr. at 65. As a result
of B.B.’s actions with her brother, B.B.’s mother told B.B. about the boundaries
of the body, which B.B.’s mother called the “bubble.” Id. At that point, B.B.
told her mother and step-father that Twiford had “broke[n] her bubble.” Id. at
52. B.B.’s parents called the police. The next day, police officers interviewed
B.B. Based on the statements that B.B. had made to officers during her
interview, the State charged Twiford with two counts of child molesting, as
Class A felonies (Counts I and II), and one count of child molesting, as a Class
C felony (Count III), for acts that had allegedly occurred between June 1 and
September 30.
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[4] The trial court held a jury trial on March 19 and 20, 2012. During the trial, the
State called B.B. as a witness. B.B. testified that Twiford had touched her “in
the wrong spots,” where she “go[es] potty.” Id. at 102. B.B. further testified
that Twiford touched her “private spot” with his hands in “wrong ways” and
that it “hurt” her. Id. at 104. B.B. also testified that Twiford’s “wee wee” had
touched her private area. Id. at 103. She then testified that Twiford “tried to
put his private part” in hers more than five times. Id.
[5] Additionally, B.B. testified that, on one occasion while Twiford lived with
them, Twiford had carried her downstairs to the couch and “took [her] clothes
off.” Id. at 105. She then stated that Twiford had “tried to have S-E-X with
[her].” Id. at 106. B.B. also testified that Twiford had taken her hand and
“made [her] shake his private part.” Id. at 108.
[6] B.B. also testified that, once, while in the bathroom, Twiford’s “wee wee”
touched “the hole part” of her bottom where she “go[es] P-O-O-P” and that it
was “super uncomfortable.” Id. at 110. She then testified that Twiford had put
“[w]hite, clear stuff” into her “bottom.” Id. at 139. B.B. testified that Twiford
had touched her private part with his hand “like ten times,” and that, in total,
Twiford had touched her “[t]wenty times.” Id. at 108, 113. During the State’s
direct examination of B.B., the State asked B.B. about the first time that
Twiford had touched her inappropriately. B.B. stated that, while they lived in a
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trailer prior to moving to the house,1 Twiford had made B.B. “suck on his
private part.” Id. at 116.
[7] Twiford did not object to B.B.’s testimony. After both parties had questioned
B.B., the jury wrote down questions that they had for her. At that time, the
court recessed in order to hear counsel’s arguments regarding the jury’s
questions.
[8] During the recess outside the presence of the jury, Twiford’s trial counsel
requested a mistrial based on B.B.’s testimony regarding the possible
molestation that had occurred in the trailer at least one year prior to the date
range alleged in the charging information. The State objected, and the trial
court denied Twiford’s motion. Twiford’s counsel then asked for a limiting
instruction that would instruct the jury that it “may only decide the facts on the
dates that are alleged in the charging Information.” Id. at 129. The court then
informed Twiford’s counsel that the dates in the information do not control
unless the defendant has asserted an alibi defense, which was not the case here.
[9] At that point, the court offered to strike the portion of B.B.’s testimony that
related to the events that had allegedly occurred in the trailer. Twiford’s
counsel agreed, but the State objected and asserted that B.B.’s testimony fell
under an exception to Indiana Evidence Rule 404(b), which exception allowed
1
It is not clear when B.B. and her family lived in the trailer. But B.B. testified that they had lived in the
trailer while her mother was pregnant with twins, who were five years old on the date of the trial.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1876 | January 31, 2019 Page 4 of 19
evidence of prior bad acts to be admitted if that evidence showed a common
plan or scheme. The court reversed its decision and did not strike the
testimony. Twiford’s counsel then stated that a limiting instruction that
informed the jury that it could only use B.B.’s testimony about the incident in
the trailer to show a common plan or scheme “would be the only suitable
alternative” to striking the testimony. Id. Twiford’s counsel then specifically
requested that the court inform the jury that it could only use the trailer
evidence to show a common plan or scheme instead of as substantive evidence
of the allegations at issue.
[10] After the jury returned, the court admonished the jury as follows:
I am hereby admonishing you that you may consider evidence
concerning prior sexual contact between the defendant and the
alleged victim which occurred at the trailer only insofar as it
demonstrates a plan to exploit and sexually abuse the child and
not as independent evidence of a separate crime.
Id. at 138.
[11] At the conclusion of the evidence, the court entered judgment in favor of
Twiford on Count II. The trial court then submitted Counts I and III to the
jury. At that time, the trial court provided the final instructions to the jury.
Among the instructions was final instruction #13, which provided: “The State
is not required to prove that the crime charged was committed . . . on the
particular date or during a particular time period as alleged in the information.”
Id. at 200. The jury found Twiford guilty of both Counts I and III, and the trial
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court entered judgment of conviction on those counts. Thereafter, the court
sentenced Twiford to an aggregate term of forty years in the Department of
Correction.
[12] On direct appeal, Twiford argued only that the State did not present sufficient
evidence to support his conviction for child molesting, as a Class A felony.
Twiford v. State, No. 20A04-1205-CR-284, 2013 WL 182745, at *1 (Ind. Ct.
App. Jan. 13, 2013). But finding that the evidence was sufficient, this Court
affirmed his conviction. Id.
[13] On June 30, 2017, Twiford filed an amended petition for post-conviction relief
in which he alleged that he had been denied the effective assistance of trial
counsel because his trial counsel: failed to object to B.B.’s testimony regarding
the possible molestation that had occurred at the trailer, which testimony
permitted the jury to draw a forbidden inference of his guilt; requested an
admonishment that linked the prior bad act to the allegations at issue; and
failed to object to a jury instruction that reinforced the forbidden inference of
the prior bad act. Twiford also alleged in his petition that he had been denied
the effective assistance of appellate counsel because his appellate counsel had
raised only the single issue of sufficiency of the evidence on appeal instead of
the admissibility of B.B.’s testimony regarding the prior bad act that had
occurred in the trailer. Following an evidentiary hearing at which Twiford’s
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trial counsel testified,2 the post-conviction court entered findings of fact and
conclusions of law denying Twiford’s petition for relief. This appeal ensued.
Discussion and Decision
[14] Twiford appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review is clear:
The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
(citations omitted). When appealing the denial 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, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction
court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[a] post-conviction 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.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to
Campbell).
2
Twiford’s appellate counsel did not testify at the hearing.
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Issue One: Effectiveness of Trial Counsel
[15] Twiford first contends that he received ineffective assistance from his trial
counsel.
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 274. The “[f]ailure to satisfy either prong will cause the claim to fail.”
French v. State, 778 N.E.2d 816, 824 (Ind. 2002). And “most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone.” Id.
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Counsel is afforded
considerable discretion in choosing strategy and tactics, and these
decisions are entitled to deferential review. Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective.
Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted).
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[16] Twiford specifically alleges that his trial counsel committed three errors,
namely: his counsel failed to object to B.B.’s testimony regarding the acts that
had occurred in the trailer, which testimony Twiford contends allowed the jury
to make a forbidden inference of his guilt; his counsel requested a jury
admonishment that specifically linked the trailer evidence to the allegations at
issue; and his counsel failed to object to a jury instruction that reinforced the
forbidden inference of the prior bad act. We address each contention in turn.
Failure to Object to B.B.’s Testimony
[17] Twiford first contends that his trial counsel’s performance was deficient because
counsel did not object to B.B.’s testimony that Twiford had made her “suck on
his private part.” Trial Tr. at 116. Twiford asserts that his trial counsel should
have objected to B.B.’s testimony because that testimony was inadmissible
under Indiana Evidence Rule 404(b)(1), which provides that “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in
order to show that on a particular occasion, the person acted in accordance
with the character.”
[18] Twiford specifically contends that B.B.’s testimony regarding the act that had
occurred while at the trailer was inadmissible evidence of a prior bad act
because the alleged incident had occurred over one year prior to the date range
alleged in the charging information. He also asserts that the testimony was not
admissible as an exception under Evidence Rule 404(b)(2), which allows
otherwise inadmissible evidence to be admitted if it demonstrates a common
scheme or plan, because his identity was not at issue and because “too great a
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span of time had elapsed” between the trailer incident and the incidents in the
timeframe alleged. Appellant’s Br. at 18.
[19] But we need not decide whether B.B.’s testimony was inadmissible under
Indiana Evidence Rule 404(b). Even if Twiford is correct that his trial counsel
could have raised a successful contemporaneous objection to B.B.’s testimony,
his trial counsel’s testimony at the post-conviction hearing establishes that he
made a strategic decision not to object. Twiford’s trial counsel testified that he
generally objects to testimony from a child “more delicately” and “where
there’s an actual break” in the testimony “so that it doesn’t look like I’m
jumping up and trying to hide something that would, ultimately, be bad for my
client.” P-C. Tr. at 13. Twiford’s counsel further testified that he did not object
to B.B.’s statements at the time she made them but, rather, waited until there
was a break in her testimony so that the jury did not view his actions as
“bullying” B.B. or otherwise convict Twiford “based on the way [the jury]
feel[s] about me or the way that I am bullying a child.” Id. at 20. Additionally,
Twiford’s counsel testified that he lodged his objection outside the presence of
the jury because objecting in front of the jury is “like re-ringing the bell over and
over.” Id. at 31. Instead of objecting, Twiford’s trial counsel took the first
opportunity when there was a natural break in B.B.’s testimony to request a
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mistrial outside the presence of the jury, which motion the trial court
considered but ultimately denied.3
[20] Based on Twiford’s trial counsel’s testimony at the post-conviction hearing, it is
clear that Twiford’s counsel made a strategic decision not to object to B.B.’s
testimony because he was concerned that the jury would disapprove of his
actions and impute their dislike of him onto Twiford and because he did not
want to “re-ring[]” the bell and highlight B.B.’s testimony to the jury. We
cannot say that trial counsel’s strategic decision not to object in the presence of
the jury but, instead, seek a mistrial outside the presence of the jury was “‘so
deficient or unreasonable as to fall outside the objective standard of
reasonableness.’” State v. Miller, 771 N.E.2d 1284, 1288 (Ind. Ct. App. 2002)
(quoting Potter v. State, 684 B.E.2d 1127, 1133 (Ind. 1997)). Accordingly,
Twiford has not demonstrated that his trial counsel was ineffective on this
issue.
Jury Admonishment
[21] Twiford next contends that his trial counsel was ineffective when his counsel
requested that the trial court admonish the jury that it could only consider the
evidence of prior sexual conduct between Twiford and B.B. that had occurred
at the trailer “only insofar as it demonstrates a plan to exploit and sexually
abuse the child and not as independent evidence of a separate crime.” Trial Tr.
3
On appeal, Twiford does not suggest that the outcome would have been different had his trial counsel
objected to the testimony instead of moving for a mistrial.
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at 138. Twiford specifically contends that his counsel’s request for that
admonishment amounted to ineffective assistance because it improperly linked
B.B.’s testimony regarding the act that had occurred at the trailer, which he
contends was inadmissible, to the allegations at issue. But, again, even
assuming for the sake of argument that Twiford is correct that B.B.’s testimony
was inadmissible, we cannot say that his counsel’s actions amounted to
ineffective assistance of counsel.
[22] Here, the record demonstrates that, after B.B. had testified regarding the acts
that had occurred in the trailer, his trial counsel moved for a mistrial because
B.B.’s testimony “dealt with . . . possible molestation at a trailer which would
have had to be at least . . . a year before the charged dates.” Trial Tr. at 126.
But, based on an objection by the State, the trial court denied his motion for a
mistrial. Twiford’s counsel then asked for a limiting instruction that would
instruct the jury that they “may only decide the facts on the dates that are
alleged in the charging Information.” Id. at 129. But the court informed
Twiford’s counsel that the dates in the information do not control unless the
defendant has asserted an alibi defense, which was not the case here. Twiford’s
counsel then agreed to the trial court’s proposed solution to strike B.B.’s
testimony. But after the State again objected, the trial court decided not to
strike the testimony. At that point, Twiford’s counsel concluded that the “only
suitable alternative” was to ask the court to give a limiting instruction to the
jury. Trial Tr. at 136.
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[23] The testimony of Twiford’s trial counsel at the post-conviction hearing
demonstrates that he made a strategic decision to request the admonishment.
Indeed, Twiford’s counsel testified that, because jurors cannot unhear
testimony, he had requested the jury admonishment because “[i]t was as
appropriate . . . as I was, potentially, going to get.” P-C. Tr. at 34. He further
testified that he “had already made [his] objection to, potentially, preserve that
issue; and, at that point, a limiting instruction . . . would at least tell the jury
that they can’t use that as part of . . . the elements of . . . any of those crimes.”
Id.
[24] It is clear that Twiford’s trial counsel requested that admonishment because the
jury had already heard B.B.’s testimony about acts that had occurred in the
trailer, because the trial court had denied his motion for a mistrial, because the
trial court had effectively denied his first request for an admonishment
instructing the jury that it could only decide the facts on the dates alleged, and
because the trial court had declined to strike the portion of B.B.’s testimony
regarding the trailer. At that point, Twiford’s counsel made a strategic decision
to ensure that, at the very least, the jury was informed that it could not use
B.B.’s testimony about the events that had allegedly occurred in the trailer to
prove the elements of the charged crimes. We cannot say that Twiford’s
counsel’s strategic decision to request that jury admonishment was
unreasonable. See Miller, 771 N.E.2d at 1288. Twiford has not demonstrated
that he was denied the effective assistance of counsel on this issue.
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Failure to Object to Jury Instruction
[25] Twiford further asserts that his trial counsel’s performance was ineffective
because he failed to object to final jury instruction #13, which provided: “The
State is not required to prove that the crime charged was committed . . . on the
particular date or during a particular time period as alleged in the Information.”
Trial Tr. at 200. According to Twiford, the evidence of acts that had occurred
in the trailer years at a date prior to the charged offenses “tended to only show
the defendant’s proclivity to commit the offenses for which he was being
charged.” Appellant’s Br. at 20. And Twiford asserts that, “[b]y allowing this
Instruction, the State was able to neutralize the years between the undiscovered
disclosure and the charged offenses and circumvent the Rules of Evidence.” Id.
at 20-21.
[26] But we need not determine whether Twiford’s trial counsel’s failure to object to
that jury instruction amounted to deficient performance because Twiford has
not shown that, but for his counsel’s failure to object, there is a reasonable
probability that the result of his trial would have been different. At trial, B.B.
testified to numerous incidents that had occurred while Twiford was staying
with them between June and September 2009. Indeed, B.B. testified that
Twiford had touched her “private” area where she “go[es] potty.” Trial Tr. at
102. B.B. also testified that Twiford had “tried to put his private part” in hers
more than five times. Id. at 104. Additionally, B.B. testified that, on one
occasion, Twiford took her clothes off and “tried to have S-E-X” with her. Id.
at 106. Further, B.B. testified that Twiford had touched her private part with
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his hand “like ten times.” Id. at 108. B.B. also testified that Twiford had
“made [her] shake his private part.” Id. And B.B. testified that Twiford had
put “[w]hite, clear stuff” into her “bottom.” Id. at 139. In all, B.B. testified that
Twiford had touched her “twenty times.” Id. at 113.
[27] Based on the totality of the evidence in this case, we cannot conclude that
B.B.’s testimony about the act that had occurred in the trailer prejudiced
Twiford to the extent that the outcome of his trial would have been different
had his trial counsel objected to final instruction #13 and had the jury not been
instructed that the State was not required to prove that the crime charged was
committed on the particular date as alleged in the information. See Bradford v.
State, 988 N.E.2d 1192, 1205 (Ind. Ct. App. 2013) (holding that, under the
circumstances of all of the evidence presented in the case, the Court could not
conclude that the outcome would have been different had the defendant’s
counsel objected to the final instruction at issue and had the jury not been told
that it could consider prior inconsistent statements as substantive evidence).
Stated another way, Twiford has not demonstrated that the jury would not have
convicted him even if it had been instructed not to consider B.B.’s testimony
about acts that had occurred in the trailer. Twiford has not demonstrated that
he received ineffective assistance of counsel on this issue.
Issue Two: Effectiveness of Appellate Counsel
[28] Twiford also contends that he was denied the effective assistance of his
appellate counsel. “We apply the same standard of review to claims of
ineffective assistance of appellate counsel as we apply to claims of ineffective
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assistance of trial counsel.” Montgomery v. State, 21 N.E.3d 846, 854 (Ind. Ct.
App. 2014). “[T]o prevail on a claim of ineffective assistance of counsel, a
petitioner must demonstrate both that his counsel’s performance was deficient
and that the petitioner was prejudiced by the deficient performance.” Id. at 853.
“Failure to satisfy either prong will cause the claim to fail.” Id. at 854.
[29] Ineffective assistance of counsel claims generally fall into three categories: 1)
denial of access to an appeal; 2) waiver of issues; and 3) failure to present issues
well. Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014). Here, Twiford asserts
that his appellate counsel failed to raise an issue on direct appeal that was
clearly stronger than the one sufficiency issue she did raise. When evaluating a
claim than an appellate attorney should have raised certain issues on appeal, we
must determine “whether an unraised issue was significant and obvious from
the face of the record” and “whether the unraised issue was ‘clearly stronger’
than the raised issue or issues.” Graham v. State, 941 N.E.2d 1091, 1099 (Ind.
Ct. App. 2011) (quoting Fisher v. State, 810 N.E.2d 674, 676 (Ind. 2004)).
[30] Counsel is very rarely found to be ineffective when the issue is failure to raise a
claim on direct appeal. See Montgomery, 21 N.E.3d at 854. That is because
“‘the decision of what issues to raise is one of the most important strategic
decisions to be made by appellate counsel.’” Id. (quoting Bieghler v. State, 690
N.E.2d 188, 193 (Ind. 1997)). Accordingly, “‘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. (quoting Bieghler, 690 N.E.2d at 193-94).
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[31] Here, Twiford contends that his appellate counsel’s performance was deficient
because she failed to raise on direct appeal the “forbidden inference” of his guilt
that Twiford alleges the jury was allowed to make from B.B.’s disclosure about
the prior bad act that had occurred in the trailer. Appellant’s Br. at 26. In
essence, Twiford contends that his appellate counsel should have argued on
direct appeal that the trial court abused its discretion under Evidence Rule
404(b) when it admitted B.B.’s testimony. And Twiford contends that the issue
of the admissibility of B.B.’s testimony was clearly stronger than the sufficiency
of the evidence issue. Appellee’s Br. at 26.
[32] However, to succeed on his ineffective assistance of counsel claim, “the
prejudice prong of Strickland requires [Twiford] to demonstrate a reasonable
probability that, but for his counsel’s errors, the result of his direct appeal would
have been different.” Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002).
Accordingly, to show prejudice regarding appellate counsel’s failure to raise the
admissibility of B.B.’s testimony, Twiford is required to show that this Court
would have reversed his convictions had his appellate counsel raised that issue
on appeal.
[33] But Twiford has not shown that there is a reasonable probability that the result
of his direct appeal would have been different had his appellate counsel raised
the issue of the admissibility of B.B.’s testimony. It is well settled that “[e]rrors
in the admission or exclusion of evidence are to be disregarded as harmless
error unless they affect the substantial rights of the party.” Lewis v. State, 34
N.E.3d 240, 248 (Ind. 2015). “To determine whether an error in the
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introduction of evidence affected the appellant’s substantial rights, this Court
must assess the probable impact of that evidence upon the jury.” Id.
[34] Here, even if we had held that the trial court abused its discretion when it
admitted B.B.’s testimony, we would have concluded that any error in that
admission was harmless. As discussed above, B.B. testified at trial to numerous
incidents that had occurred while Twiford was staying in the same house as
B.B. from June to September 2009. Indeed, B.B. testified that Twiford had
touched her in her “private area.” Trial Tr. at 102. She further testified that
Twiford had “tried to put his private part” in hers more than five times. Id. at
104. Additionally, B.B. testified that Twiford “tried to have S-E-X” wither her.
Id. at 106. B.B. also testified that Twiford had “made [her] shake his private
part.” Id. And B.B. testified that Twiford had put “[w]hite, clear stuff” into her
“bottom.” Id. at 139. In all, B.B. testified that Twiford had touched her
“twenty times.” Id. at 113. Based on that testimony, we cannot say that B.B.’s
one statement—which, based on a jury admonishment, was not even admitted
as substantive evidence—regarding an act that had occurred prior to the date
range alleged in the charging information had a probable impact on the jury.
[35] Because any error in the admission of B.B.’s statement was harmless, Twiford
has not demonstrated a reasonable probability that the result of his direct appeal
would have been different had his appellate counsel raised the issue of the
admissibly of B.B.’s testimony rather than the sufficiency of the evidence. See
Martin, 760 N.E.2d at 600. As such, Twiford has not demonstrated that he was
denied the effective assistance of appellate counsel.
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Conclusion
[36] In sum, we affirm the post-conviction court’s denial of Twiford’s petition for
post-conviction relief.
[37] Affirmed.
Pyle, J., and Altice, J., concur.
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