dissenting.
I respectfully dissent from the majority’s conclusion that Smith received ineffective assistance of trial counsel.
The critical issue in the instant case is the admissibility of the statement given to the police by Smith. In the statement, Smith admitted that he had molested S.S. and gave a detailed account of his actions in committing several molestations. Smith’s counsel did not object when the statement was offered into evidence and Smith now claims that the failure to do so constituted ineffective assistance of counsel.
To prevail upon such a claim, without regard to the particular nature of the act or omission in question, a defendant must show not only that the performance was deficient, but also that it resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Turner v. State, 580 N.E.2d 665 (Ind.1991). In evaluating the first element of the Strickland test, we are bound to observe the principle that decisions that may be characterized as matters of trial strategy will not supply the basis for a finding of ineffective assistance of counsel. Stroud, 587 N.E.2d 1335. Even poor strategy and bad tactics may not amount to ineffective assistance. Id.; Mullins, 504 N.E.2d 570. The decision to explain evidence rather than attempt to have it excluded is a matter of strategy. Mullins, 504 N.E.2d 570.
The majority acknowledges that the decision not to object to the statement was a tactical one, but concludes that it had no rational basis in trial strategy. The majority states that “the choice appears to have been so poor that no reasonable lawyer would have been tempted- by it.” . Op. at 772 (quoting McBride v. State, 595 N.E.2d 260, 262-63 (Ind.Ct.App.1992), trans. denied). Utilizing the standard enunciated in McBride, the majority determines that the decision was so irrational that it cannot withstand even the deferential review we are constrained to apply when considering challenges to the effectiveness of trial counsel. I do not agree.
At trial, Smith’s counsel attempted to challenge the validity of the confession through the cross-examination of Officer Brinson and through the testimony of Smith himself. Counsel attempted to convince the jury that at the time he gave the statement, Smith had a legitimate reason to fear police, that he did in fact fear the police, and that the officers conducting the interview badgered and intimidated him into confessing. Counsel also introduced evidence that Smith had a limited mental capacity. Taken together, it was not totally unreasonable for counsel to believe that Smith could have been rendered a sympathetic, easily coerced figure in the jury’s eyes.
I also cannot agree with the majority’s conclusion that the failure to object constituted ineffective assistance because the State’s case “consisted almost entirely of [Smith’s] confession.” Op. at 772. It was undisputed that S.S. had been molested. Therefore, the critical evidence to be examined, which the majority infers was practically nonexistent, was that tending to identify Smith as the molester.
The evidence favorable to the judgment demonstrated that each discovery of S.S.’s physical symptoms of molesting was made shortly after S.S. returned from visits with Smith. Also coinciding with her return from *776such visits, S.S. exhibited behavior associated with molestations of young children, including fondling herself, being temperamental, and saying that she was angry at Smith and did not want to visit him again. In my view, such evidence of guilt, though circumstantial, was not insubstantial. I therefore do not agree that the first element of the Strickland test was satisfied, i.e., that the strategy was totally devoid of merit.
Leaving aside the question of the reason-ablesness of the strategy, I am most troubled by the majority’s conclusion with regard to the second element of the Strickland test, i.e., that a finding of ineffective assistance of counsel may be based upon the failure to object to evidence, even if it is unclear that the objection would have been sustained. The majority correctly concedes that Stroud holds that in order to succeed on a claim of ineffective assistance of counsel based upon failure to interpose an objection, a defendant must show that the objection would have been sustained. The relevant portion of Stroud reads as follows:
When an appellant predicates an ineffective assistance of counsel claim on counsel’s failure to interpose an objection, the appellant must demonstrate that a proper objection would have'been sustained by the trial court.
Id. at 1338. Neither in the above passage nor in the discussion that follows did the Stroud court indicate that the defendant’s burden may be relaxed under certain circumstances. The court’s holding that an appellant “must demonstrate” that the objection would have been sustained was both unequivocal and unconditional. Nevertheless, the majority concludes that the exception is necessary here because the alleged ineffective assistance precluded the presentation of evidence that would enable this court to determine whether an objection would have been sustained. I disagree.
The presumption of competent representation may only be overcome by strong and convincing evidence. Short v. State, 539 N.E.2d 939 (Ind.1989). Officer Brinson’s testimony regarding the taking of Smith’s statement indicated that the statement was voluntary and uncoerced. Smith’s version differed significantly, however, from Officer Brin-son’s. The majority concludes that the conflicting accounts render this court incapable of determining whether Smith could have met his burden to demonstrate that an objection would have been sustained. I believe that our standard of review in the instant case precludes us from engaging in such speculation. The mere presence of conflicting accounts with regard to the circumstances of the interview, without more, hardly constitutes clear and convincing evidence such as is necessary to overcome the presumption of competent representation. Id.
Stroud is representative of a long line of cases that impose upon a defendant the burden of proving that an objection would have been sustained. My research reflects that the law in this regard has not changed. See, e.g., Norwood v. State, 670 N.E.2d 32 (Ind.Ct.App.1996). The majority’s holding today creates an exception to the heretofore mandatory rule regarding an appellant’s burden with regard to ineffective assistance claims premised upon a failure to object. I believe that such an exception carries with it a potential for mischief that counsels against its creation.
Based upon my review of the record and the arguments in support of Smith’s claim, I conclude that Smith has failed to carry his burden with respect to both elements of the Strickland test and therefore his ineffective assistance claim must fail. I would affirm the conviction.