Judge, dissenting.
I respectfully dissent from the majority’s conclusion that the rape and confinement convictions must be reversed.
The majority acknowledges that the two issues Taylor presents would normally be subject to waiver because Taylor failed to preserve them. The majority nevertheless addresses the issues on the merits on the ground that the errors were fundamental and not subject to waiver. I believe the majority applies the fundamental error doctrine too broadly in view of the fact that the errors are presented in a post-conviction proceeding.
In Canaan v. State, 683 N.E.2d 227 (Ind.1997), cert. denied, — U.S. -, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998), our supreme court indicated that the fundamental error doctrine is significantly narrowed when applied in the post-conviction setting, as reflected in the following:
Canaan seeks to avoid application of the waiver doctrine by arguing that it does not apply here because “these challenges ... raise fundamental issues.” As such, he makes a bold assertion of the fundamental error doctrine. It is true that we have acknowledged an exception to the waiver rule in circumstances where the trial court committed “fundamental error.” We view this exception as an extremely narrow one, available only “when the record reveals clearly blatant violations of basic and elementary principles [of due process], and *277the harm or potential for harm cannot be denied.” While concerns over due process do sometimes merit invocation of a fundamental error exception to the contemporaneous objections rule on direct appeal, we think its availability as an exception to the waiver rule in post-conviction proceedings is generally limited to those circumstances we set forth in Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985): “[Deprivation of the Sixth Amendment right to effective assistance of counsel, or ... an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal.”
Canaan v. State, 683 N.E.2d at 235-36 n. 6. Pursuant to Canaan, the fundamental error doctrine can only be invoked in the post-conviction setting with respect to two types of claims: (1) claims of ineffective assistance of counsel, and (2) issues that were unavailable at the time of trial and direct appeal. I believe the majority errs in resolving this appeal from the denial of Taylor’s PCR petition on grounds other than those identified in Canaan. It is clear to me that the issues Taylor raises were available at the time of trial and direct appeal. Therefore, the errors presented in Taylor’s PCR petition must be analyzed in the context of his claims of ineffective assistance of counsel.
In the instant case, I believe that Taylor’s PCR petition with respect to the rape conviction should be denied because he has failed to demonstrate that he received ineffective assistance of counsel regarding the alleged Doyle violations. Of the four instances of alleged Doyle violations, two were elicited by defense counsel’s questioning of a witness. Such invited error is neither reversible error nor fundamental error. See Kingery v. State, 659 N.E.2d 490 (Ind.1995).
The third allegation of a Doyle violation occurred during the State’s cross-examination of Taylor. Taylor was asked if he had told the investigating officer that the victim consented to engage in sexual intercourse. In my view, the immediate objection by defense counsel, followed by the trial court’s instruction to disregard the question and admonishment that everyone has the right not to “discuss anything with the lieutenant or anyone else,” Record at 452, was sufficient to cure any error that may have occurred. See Lay v. State, 659 N.E.2d 1005 (Ind.1995). For purposes of the issue under consideration, trial counsel’s performance in this matter cannot be characterized as inadequate. Neither can appellate counsel’s failure to present the issue constitute ineffective assistance in view of the fact that the error, if any, was cured.
The fourth alleged Doyle violation occurred when the investigating officer was asked how his investigation would have differed if he believed the Taylor would assert a consent defense. He answered that he would have tried to ascertain the nature of the relationship between Taylor and the victim. The response arguably suggested that Taylor had not previously asserted the defense.
In order to succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance fell below an objective standard and that such performance was so deficient and prejudicial that the defendant was denied a fair trial, i.e., a trial whose result was unreliable. Bannowsky v. State, 677 N.E.2d 1032 (Ind.1997).
Even if the investigating officer’s response constituted error, reversal is not warranted in the instant case. Unlike the majority, I view the evidence of guilt as more than merely sufficient, and certainly of such a character that I am convinced beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the comment. Bevis v. State, 614 N.E.2d 599 (Ind.Ct.App.1993). Put another way, I believe that the result of the trial was not unreliable. Therefore, counsel did not render ineffective assistance in this regard.
Having found no ineffective assistance of counsel concerning the rape charge, I would affirm that conviction.
Turning now to the confinement conviction, the standard for reviewing a claim of ineffective assistance of appellate counsel is the same as that used in reviewing the adequacy of trial counsel’s representation. Lowery v. State, 640 N.E.2d 1031 (Ind.1994), cert. de*278nied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). Appellate counsel’s failure to present a double jeopardy challenge that would have succeeded constitutes ineffective assistance of counsel. See Games v. State, 684 N.E.2d 466 (Ind.1997), modified on other grounds upon reh’g, 690 N.E.2d 211.
I note first that we are foreclosed by Games from analyzing Taylor’s double jeopardy claim under the Indiana Constitution. In Games, our supreme court clarified that, in order to properly present a separate double jeopardy claim arising under the Indiana Constitution, a defendant must do more than merely cite that provision and claim greater protection:
In presenting the general claim that his sentences violate the double jeopardy provision of the Indiana and United States Constitutions, the defendant cites both constitutions. However, the defendant does not provide Indiana authority, and we find none from this Court, establishing an independent state double jeopardy protection based upon an analysis of the Indiana Constitution.... The defendant presents no argument urging that the Indiana Constitution provides double jeopardy protections different from those under the federal constitution.... Because the defendant fails to present an argument based upon a separate analysis of the Indiana Constitution, “we will only analyze this under federal double jeopardy standards.”
Games v. State, 684 N.E.2d at 473 n. 7 (emphasis in original) (quoting Gregory-Bey v. State, 669 N.E.2d 154, 157 n. 8 (Ind.1996)).
In his double jeopardy argument pertaining to the Indiana Constitution, Taylor cites several decisions of this court that support his contention that the Indiana Constitution affords greater protection than its federal counterpart. He cites other decisions of this court, however, that disagree with the proposition he advances. Beyond said citation of authority, Taylor offers no separate analysis under the Indiana Constitution. My understanding of the Games decision leads me to conclude that the lack of a separate analysis of the Indiana constitutional provision in question prevents this court from even addressing the question in that context. See Valentin v. State, 688 N.E.2d 412, 413 (Ind. 1997) (“[i]n the absence of any separate state constitutional law argument by defendant, the Court of Appeals should not have based its reversal of defendant’s conspiracy conviction on the Indiana double jeopardy clause”). Therefore, we are constrained to address the double jeopardy question only in the context of the federal constitution, utilizing the analysis prescribed by the United States Supreme Court for challenges arising under the federal Double Jeopardy Clause.
In the instant case, Taylor was convicted of both rape and confinement. The majority states that the double jeopardy analysis focuses not only upon the statutes involved, but also upon “the factual bases contained in the information or indictment.” Op. at 275. This is squarely at odds with our supreme court’s observation that “the United States Supreme Court’s ‘same elements’ test requires that we look only to the statutory elements of the offenses, not to the charging information, the jury instructions outlining the elements of the crime, or the underlying proof needed to establish the elements.” Games v. State, 684 N.E.2d at 477. The proper analysis was set forth in Games, where our supreme court observed that the federal double jeopardy analysis focuses upon the statutory elements of the offenses charged and not on the facts that must be proven under the particular indictment at issue. Id. at 476 (citing United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)).
Indiana’s criminal confinement statute requires proof of nonconsensual substantial interference with a person’s liberty, see IC § 35-42-4-1, while the rape statute requires proof of forced sexual intercourse with a member of the opposite sex. See IC § 35-42-3-3. It is clear that each requires proof of an additional fact with the other does not: criminal confinement requires a knowing or intentional interference with liberty; rape requires knowing or intentional forced sexual intercourse. Accordingly, Taylor’s conviction of both offenses did not violate the Double Jeopardy Clause of the United States Constitution. It follows that appellate counsel’s failure to raise the issue did not prejudice *279Taylor and his claim of ineffective assistance of counsel in that regard thereby fails.
Having found no ineffective assistance of counsel on either the alleged Doyle violations or the double jeopardy question, I would affirm the denial of Taylor’s petition for post-conviction relief.