Brent D. Mullis v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 28, 2025
• Docket: 24A-PC-01025
• Status: Published

Opinion

FILED Mar 28 2025, 8:47 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Brent D. Mullis, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

March 28, 2025 Court of Appeals Case No. 24A-PC-1025 Appeal from the Bartholomew Circuit Court The Honorable Kelly S. Benjamin, Judge Trial Court Cause No. 03C01-2206-F5-2806 03C01-2309-PC-4649

Opinion by Judge Pyle Judges May and Brown concur.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 1 of 38 Pyle, Judge.

Statement of the Case

[1] Brent D. Mullis (“Mullis”) was convicted of Level 5 felony burglary,1 Class A

misdemeanor theft,2 and Class B misdemeanor criminal mischief3 and was

adjudicated to be an habitual offender.4 The trial court sentenced Mullis to an

aggregate sentence of twelve years. Mullis commenced a direct appeal but

suspended it, pursuant to the Davis/Hatton procedure,5 and filed a petition for

post-conviction relief. In his post-conviction petition, he raised a claim of

ineffective assistance of trial counsel. The post-conviction court denied Mullis’

petition for post-conviction relief.

[2] Mullis now raises three direct appeal issues and one post-conviction appeal

issue. Specifically, he argues that: (1) the trial court committed fundamental

1 IND. CODE § 35-43-2-1. 2 I.C. § 35-43-4-2. 3 I.C. § 35-43-1-2. 4 I.C. § 35-50-2-8. 5 As our Court has explained: The Davis-Hatton procedure results in the termination or suspension of an already initiated direct appeal to allow the appellant to pursue a petition for post-conviction relief. Where, as here, the petition for post-conviction relief is denied, the direct appeal may be reinstated. This procedure permits an appellant to simultaneously raise his direct-appeal issues as well as issues on appeal from the denial of his petition for post-conviction relief. In other words, the direct appeal and the appeal of the denial of post-conviction relief are consolidated. Hinkle v. State, 97 N.E.3d 654, 658 n.1 (Ind. Ct. App. 2018) (internal citations and quotation marks omitted).

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 2 of 38 error when it admitted into evidence testimony from a witness relating to

Mullis’ identification; (2) there is insufficient evidence to support his burglary

conviction; (3) his aggregate sentence is inappropriate; and (4) the post-

conviction court erred by denying his petition for post-conviction relief.

Concluding that: (1) Mullis has failed to show fundamental error; (2) there is

sufficient evidence to support Mullis’ conviction; (3) Mullis’ aggregate sentence

is not inappropriate; and (4) the post-conviction court did not err by denying

Mullis’ petition for post-conviction relief, we affirm the challenged judgments.

[3] We affirm.

Issues 1. Whether the trial court committed fundamental error when it admitted testimony into evidence.

2. Whether there is sufficient evidence to support Mullis’ burglary conviction.

3. Whether Mullis’ sentence is inappropriate.

4. Whether the post-conviction court erred by denying Mullis’ petition for post-conviction relief.

Facts

[4] In 2007, in another cause, Mullis was convicted of two counts of Class C felony

burglary, adjudicated to be an habitual offender, and sentenced to an aggregate

term of twenty-eight (28) years executed in the Indiana Department of

Correction (“DOC”). A few months before May 2022, Mullis was released on

parole. Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 3 of 38 [5] In May 2022, Mullis attended counseling at Centerstone Health Services

(“Centerstone”). Mullis lived with his mother (“Mullis’ mother”) in an

apartment complex just down the street from the Centerstone building.

[6] Genoa Healthcare Pharmacy (“the pharmacy”) rented office space within the

Centerstone building, and it provided pharmacy services for patients of

Centerstone. In May 2022, Rachael House (“House”) was the pharmacy site

manager.

[7] On May 31, 2022, around 5:45 a.m., the pharmacy’s alarm monitoring

company called House and left a voicemail to notify her that the pharmacy’s

alarm had been triggered. House did not hear the voicemail at that time. The

pharmacy’s alarm monitoring company also called the police to notify them of

the triggered alarm.

[8] Around 5:48 a.m., the Columbus Police Department received a notification

from dispatch regarding the alarm. A police officer went to the Centerstone

building, walked around it, and checked for any signs of a break-in. The officer

did not see any open or damaged doors. The officer was unable to go inside the

building because dispatch had been unable to reach anyone who had keys for

the building. The officer left the building around 6:00 a.m.

[9] Around 7:15 a.m., Kristie Petro (“Petro”), the practice manager for

Centerstone, arrived to the Centerstone building for work. When Petro entered

the building, she noticed that the door for Suite 200 was ajar, a wooden piece

was missing from the top of the door, and there was glass that appeared

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 4 of 38 shattered near the door. As Petro exited the building to call the police, she

noticed another set of doors that appeared to be ajar.

[10] Police officers arrived at the Centerstone building around 7:30 a.m. The

officers did a sweep of the building and saw damage to the various parts of the

building. For example, there were scratches to the inner portion of a set of

metal exterior doors that led inside the building. There was also damage near

Suite 200 inside the building, and this damage included chunks of concrete on

the floor, a window that appeared as if someone had attempted to break it, and

damage to the top of the door where a magnetic lock had been pried off.

Additionally, the officers discovered damage to a latch mechanism of a door

that led to an employee-only hallway leading to the pharmacy, damage to a

latch mechanism of the pharmacy doorway, and an alarm monitor on the

hallway floor.

[11] House arrived for work at the pharmacy around 7:30 a.m. and saw the police in

the parking lot. She then realized that she had missed the call from the

pharmacy’s alarm monitoring company. The police let House into the building

to go to the pharmacy. As House walked in the hallway toward the pharmacy,

she saw that the pharmacy’s alarm monitor, which had been located inside the

pharmacy, had been ripped off the pharmacy wall and was on the hallway

floor. Once inside the pharmacy, House saw that medications were missing

from the shelves, medications on the counter had been moved and “obviously

rooted through[,]” the locked cabinet and safe that held controlled substances

had been pried open and some controlled substances had been removed, the

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 5 of 38 cash register had been opened and was missing money, and there were several

medication bottles on the floor. (Trial Tr. Vol. 2 at 78). The medications that

had been taken included both controlled and non-controlled substances. The

controlled substances that had been stolen included 400-500 tablets of

Alprazolam or Xanax in several strengths, a bottle of Methylphenidate, and a

bottle of Promethazine with Codeine. The non-controlled substances stolen

included bottles of Hydroxyzine, Hydralazine, Hydrochlorothiazide, and

Omeprazole. House also found a screwdriver on the counter and a set of pliers

near the computer. These tools did not belong to the pharmacy.

[12] That same day, the police obtained security surveillance videos from both the

pharmacy and Centerstone. The pharmacy had cameras that “cover[ed] every

inch of the pharmacy.” (Trial Tr. Vol. 2 at 98). The police obtained seven

videos from the pharmacy, and those videos were in black and white. The

pharmacy’s video footage showed a male suspect go into the pharmacy. The

suspect was wearing gloves, shorts, a t-shirt, and tennis shoes with stripes on

the side. The suspect’s face is visible in the videos. At times, the suspect pulled

the collar of his t-shirt up over his nose as if to attempt to cover his face. The

video also showed the suspect, who had a flashlight, search the medication

bottles on the pharmacy’s shelves and then take certain bottles. The suspect

pulled a plastic bag out of his pocket and placed the bottles in the bag.

Additionally, the video showed the suspect place a pair of pliers on the

countertop and then take money from the cash register. The suspect also took a

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 6 of 38 screwdriver out of his back pocket, pried open a locked cabinet, and took

medication from it.

[13] The two videos that the police obtained from Centerstone were in color.

Centerstone’s video footage showed the same male suspect, who was wearing a

gray t-shirt, blue jean shorts, and white tennis shoes. The videos showed the

suspect, who was carrying a plastic bag, walking in the parking lot and towards

a line of trees on the edge of the parking lot.

[14] Detective Tony Kummer (“Detective Kummer”) took still photographs from

the surveillance videos and emailed these photos of the suspect to law

enforcement. The police then posted the photos of the suspect on social media.

Thereafter, “multiple people[,] both within law enforcement [and] also [in] the

general public[,]” provided Mullis’ name as the person in the photographs.

(Trial Tr. Vol. 2 at 235).

[15] Stephanie Nienaber (“Nienaber”), who was a front desk worker at Centerstone,

was one of the people who had identified the suspect as Mullis. Nienaber saw

the photographs on social media and believed that the suspect resembled

Mullis, whom she had previously helped while he was at Centerstone.

Nienaber had also seen Mullis’ photograph in his Centerstone patient file.

Nienaber then looked in Mullis’ patient file, reviewed his patient photo and his

driver’s license photo that were in his file, and then notified Petro, who was her

boss. Thereafter, Petro informed the police of Nienaber’s belief that Mullis was

the suspect in the police photos.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 7 of 38 [16] On the morning of June 1, Detective Kummer instructed Officer Frank

Dickman (“Officer Dickman”) to go to Mullis’ apartment complex to see if the

officer could make contact with Mullis, who had become a person of interest in

the investigation. When Mullis appeared in the parking lot, Officer Dickman,

who was wearing a body cam, spoke to Mullis. Officer Dickman recorded

video and took photographs of Mullis. The officer then left Mullis, downloaded

his body cam video and photographs, and provided them to Detective Kummer

for his investigation. Detective Kummer compared the images of Mullis on the

officer’s body cam to the surveillance videos from Centerstone and the

pharmacy, and he “believed that the subject in the pharmacy and . . . Mullis

were the same person.” (Trial Tr. Vol. 2 at 209).

[17] Later that day, Detective Kummer obtained a search warrant for Mullis’

apartment and for a DNA sample. When Detective Kummer and police

officers went to Mullis’ apartment, Mullis was there with his mother and

another person. The police did not find anything of evidentiary value within

Mullis’ apartment. The police then searched the “public” or “communal”

dumpster at Mullis’ apartment complex, and they found a trash bag containing

men’s clothing that appeared to be consistent with the clothing worn by the

suspect from the security videos. (Trial Tr. Vol. 2 at 174, 214). Specifically, the

trash bag contained blue jean shorts, a gray t-shirt, and white tennis shoes with

stripes on the side. Detective Kummer noted that the collar of the t-shirt was

“bowed out[,]” and he believed that the collar seemed to be stretched from the

“same motion [the suspect had made in the video] of trying to cover his face.”

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 8 of 38 (Trial Tr. Vol. 2 at 215-16). Additionally, the trash bag contained two

appointment cards from Centerstone that had Mullis’ first name of “Brent” on

them. The trash bag also contained an empty prescription bottle from the

pharmacy, and that bottle had Mullis’ mother’s name on it.

[18] The State charged Mullis with Level 5 felony burglary, Level 6 felony theft, and

Class B misdemeanor criminal mischief. 6 The State also alleged that Mullis

was an habitual offender.

[19] After the police had arrested Mullis, they later seized his cellphone pursuant to

a search warrant. Thereafter, the Indiana State Police Cyber Crimes Unit

analyzed Mullis’ cellphone. That analysis revealed that, in the week leading up

to the burglary, Mullis had done Google searches on how to deactivate a

business or DCS alarm and on how burglars disable alarms. The analysis also

revealed that, on the day of the burglary, Mullis had done Google searches on

medications that were the same medications that had been stolen from the

pharmacy. Those medication searches occurred between 6:30 a.m. to around

1:00 p.m., which was after the time of the burglary. Additionally, the State sent

the tennis shoes found in the trash bag and the screwdriver found in the

pharmacy for DNA testing. A forensic scientist determined that Mullis’ DNA

6 The theft charge was enhanced to a Level 6 felony based on the allegation that Mullis had a prior burglary conviction.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 9 of 38 matched the DNA on the tennis shoes and that there was an insufficient

quantity of DNA on the screwdriver.

[20] The trial court held a three-day bifurcated jury trial in late February/early

March 2023. Mullis was represented by appointed counsel, Joseph Villaneuva

(“Trial Counsel”). Mullis’ theory of defense was identification. During

opening statements, Trial Counsel stated that there were no eyewitnesses who

had seen Mullis commit the crimes and that the State would have to rely upon

circumstantial evidence to prove identification.

[21] During the trial, the State introduced over one hundred exhibits, which

included photographs of the damage done to the Centerstone building and the

pharmacy, the surveillance videos from the pharmacy and Centerstone, the still

photographs of the suspect taken from the pharmacy videos, the clothing and

shoes found in the dumpster at Mullis’ apartment, and Mullis’ photograph and

driver’s license photograph that were in his Centerstone patient file.

Additionally, the State Police forensic analyst testified that DNA testing of the

tennis shoes from the trash bag showed that the tennis shoes contained DNA

that matched Mullis, and the State admitted the DNA analysis report into

evidence. Also, the State Police digital forensic examiner testified about Mullis’

Google searches on medications and on how burglars disable an alarm, and the

State admitted the printout of Mullis’ Google searches.

[22] Nienaber, Officer Dickman, and Detective Kummer provided an in-court

identification of Mullis. Specifically, Nienaber, who testified that she had

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 10 of 38 previously helped Mullis while at Centerstone and had seen Mullis’ photograph

in his Centerstone patient file, identified him in court. Nienaber also testified

how she had seen the still photographs of the suspect on social media, believed

that the suspect resembled Mullis, reviewed Mullis’ patient photo and his

driver’s license photo in his file, and then ultimately notified the police of that

identification belief. Mullis did not object to Nienaber’s testimony.

Additionally, Officer Dickman identified Mullis in court as the person whom

he had encountered on June 1 in Mullis’ apartment parking lot and had videoed

and photographed. Lastly, Detective Kummer identified Mullis in court as the

person he had seen in the surveillance videos, still photos, and in Officer

Dickman’s body cam video and photos. Following Detective Kummer’s

testimony, the jurors submitted questions for the detective. One juror asked

Detective Kummer to give his “level of certainty” that the person in the

surveillance videos was Mullis, and Detective Kummer responded, “One

hundred percent.” (Trial Tr. Vol. 2 at 235).

[23] Centerstone’s director of facilities, Melissa Brown (“Brown”), testified about

the location and operation of Centerstone’s security cameras. Specifically,

Brown testified about the type of equipment used for the security cameras, the

location where the equipment was secured, the process of how the video

footage was recorded and could be retrieved, and the accuracy of the timestamp

on the videos.7 When the State moved to admit Exhibits 69 and 70, the

7 The timestamp on the videos was off by around twenty minutes.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 11 of 38 surveillance videos from the exterior of the Centerstone building, Trial Counsel

asked Brown some preliminary questions about the videos. Brown verified that

the two videos that Centerstone had provided to the police had been retrieved

directly from Centerstone’s secured server system and had not been edited or

altered. Trial Counsel then told the trial court that “[w]ith that, I can’t have an

objection.” (Trial Tr. Vol. 2 at 137). The trial court then admitted the

Centerstone surveillance videos into evidence.

[24] The pharmacy’s director of operations, Aaron Knapp (“Knapp”), testified about

the location and operation of the pharmacy’s security system and security

cameras. Specifically, Knapp explained that the pharmacy had seven security

cameras that covered all parts of the pharmacy and that the system was

monitored 24/7. Knapp also testified about the type of equipment used for the

security cameras, the process of how the video footage was recorded and could

be retrieved from an online portal, and the timestamp information on the

videos. Additionally, Knapp testified that the videos that the pharmacy had

provided to the police were accurate and had not been altered. The State

offered Exhibits 55 through 61, the seven videos from the pharmacy, and the

trial court admitted them into evidence without objection. Additionally, the

State also admitted Exhibits 62 through 68, which were still photographs

obtained from the pharmacy’s surveillance videos. These photographs, which

had timestamps between 5:43 a.m. and 6:01 a.m., showed the suspect inside the

pharmacy as he walked through the pharmacy, searched the shelves, pried open

a locked cabinet, took medications, and took cash from the cash register.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 12 of 38 [25] The State also admitted photographs of the contents of the trash bag found in

Mullis’ apartment dumpster. Specifically, the photographs showed the gray t-

shirt, blue jean shorts, white tennis shoes, two Centerstone business cards with

the name Brent on them, and an empty prescription bottle, which came from

the pharmacy and had Mullis’ mother’s name on it. Mullis did not object to the

admission of this testimony. The State also admitted the t-shirt, shorts, and

shoes into evidence without objection.

[26] The jury found Mullis guilty of Level 5 felony burglary, Class A misdemeanor

theft, and Class B misdemeanor criminal mischief. After the jury entered their

verdicts, the jury exited the courtroom before the trial court proceeded to phase

two of the trial.

[27] Thereafter, Trial Counsel informed the trial court that Mullis was planning to

admit to the theft enhancement and to the habitual offender allegation. When

the trial court asked Mullis to raise his right hand, Mullis told the trial court,

“I’m not doing that. I’m not raising my right hand; I’m not saying nothing else.

. . . I think this is a bias court and you can kiss my ass[,] and I don’t give a

damn what you charge[.]” (Trial Tr. Vol. 3 at 79). The trial court found Mullis

in contempt of court, and Mullis replied, “That’s fine. Find me in contempt[.]”

(Trial Tr. Vol. 3 at 79). The trial court warned Mullis to remain quiet or he

would serve additional jail time, and Mullis told the trial judge, “You’re a bias

bitch and fuck you[.]” (Trial Tr. Vol. 3 at 80). The trial court ordered Mullis to

serve 180 days in jail and ordered him to be removed from the courtroom.

Mullis continued his outburst, calling the trial judge, “a fucking bitch” and

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 13 of 38 telling her to “give [him] another 180 days[.]” (Trial Tr. Vol. 3 at 81). As

Mullis was removed from the courtroom, he yelled “good riddance bitch.”

(Trial Tr. Vol. 3 at 82). Mullis also told Trial Counsel that he had done “a good

job” and that it was “hard to beat a stacked deck[.]” (Trial Tr. Vol. 3 at 82).

[28] The State informed the trial court that it no longer wished to proceed on the

theft enhancement and would proceed only on the habitual offender allegation.

The trial court then had the jury return to the courtroom for the habitual

offender allegation phase of the trial. Following the presentation of evidence,

the jury found Mullis to be an habitual offender. The trial court deferred

entering judgments of conviction until the sentencing hearing.

[29] The presentence investigation report (“PSI”), which was completed in March

2023, revealed that then forty-nine-year-old Mullis had an extensive criminal

history, including felony convictions, a misdemeanor conviction, and probation

violations. Mullis’ felony convictions included five burglary convictions and a

theft conviction with executed time served in the DOC. Mullis also had a

felony conviction for escape after he had escaped from the DOC, stole a truck,

and fled to Georgia. Mullis had been sentenced on his two most recent felony

burglary convictions in 2007, and he had been on parole from these burglary

convictions at the time he committed the offenses at issue in this case.

Additionally, Mullis had a lengthy juvenile history that spanned from age seven

to age sixteen when he had been waived to adult court. His juvenile history

included burglary, theft, robbery, intimidation, criminal conversion, and

mischief. Additionally, the PSI revealed that Mullis had started using

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 14 of 38 methamphetamine when he was eighteen years old and had used it until the

time of his arrest in 2022.

[30] During Mullis’ sentencing hearing, the trial court gave Mullis an opportunity to

make a statement of allocution. Mullis stated, “I’m not going to waste my

time. I’m not begging for mercy. It’s irrelevant and . . . I don’t have nothing to

say.” (Trial Tr. Vol. 3 at 126). Thereafter, when the trial court was discussing

aggravating and mitigating circumstances, Mullis engaged in an outburst and

accused the trial court and the police of being unfair and biased. The trial court

instructed Mullis to stop and warned him that he could be held in contempt of

court. Mullis told the trial court, “I don’t care what you do.” (Trial Tr. Vol. 3

at 131). When the trial court told him that he would be held in contempt if he

spoke again, Mullis retorted, “hold me in fifteen thousand contempt[s]” and

continued his outburst. (Trial Tr. Vol. 3 at 131). The trial court found Mullis

in contempt of court and ordered him to serve thirty (30) days in jail

consecutively to his other contempt jail sentence. When the trial court warned

Mullis that he could be removed from the courtroom if he did not stop his

outburst, Mullis continued his outburst. The trial court then removed Mullis

from the courtroom and continued with sentencing.

[31] The trial court found that there were no mitigating circumstances. The trial

court found that aggravating circumstances included: (1) Mullis’ extensive

criminal history; (2) his previous probation violations; (3) the fact that Mullis

was on parole at the time of his offenses; (4) his lack of remorse; (5) his disdain

for the court, law enforcement, and the community; and (6) the nature and

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 15 of 38 circumstances of the offenses. The trial court noted that Mullis had burglarized

the place where he had been receiving treatment and that the “gratitude he gave

was by busting in the doors[.]” (Trial Tr. Vol. 3 at 134). Additionally, the trial

court noted that Mullis had taken medicines from the pharmacy that other

patients had needed and further resulted in the pharmacy “shutting down . . .for

a period of time so that persons could not get [the] assistance or help that they

needed.” (Trial Tr. Vol. 3 at 134).

[32] The trial court entered the judgments of conviction and imposed a six (6) year

sentence for Mullis’ Level 5 felony burglary conviction, a one (1) year sentence

for his Class A misdemeanor theft conviction, and a 180-day sentence for his

Class B misdemeanor criminal mischief conviction. The trial court ordered

these sentences to be served concurrent to one another. The trial court also

enhanced Mullis’ Level 5 felony conviction by six (6) years for his habitual

offender adjudication. Therefore, the trial court imposed an aggregate sentence

of twelve (12) years to be served in the DOC.8

[33] Mullis, while represented by appellate counsel, then commenced a direct

appeal. While the appeal was pending, Mullis filed a Davis/Hatton petition,

seeking to stay his appeal and to file a petition for post-conviction relief. Our

Court granted his request to utilize the Davis/Hatton procedure and dismissed

his appeal without prejudice.

8 The trial court ordered that Mullis’ aggregate sentence be served consecutively to his contempt sentences.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 16 of 38 [34] Thereafter, Mullis filed a pro se post-conviction petition, which he twice

amended. In his final amended petition, Mullis raised a claim of ineffective

assistance of trial counsel.9 Mullis argued that Trial Counsel had rendered

ineffective assistance when he failed to file or raise pretrial and trial challenges

to the following State’s evidence: (1) Centerstone’s and the pharmacy’s

surveillance videos; (2) the shirt, shorts, and shoes found in the communal

apartment dumpster; and (3) Nienaber’s testimony. Specifically, Mullis

asserted that Trial Counsel should have filed a motion to suppress and should

have objected at trial to the surveillance videos because the State had failed to

lay a proper foundation when “[t]here were no witnesses to authenticate that

the individual in the video[s] was [Mullis.]” (App. Vol. 4 at 10). Mullis also

argued that Trial Counsel should have filed a motion to exclude the shirt,

shorts, and shoes because “no witness could testify as to why these items were

in the dumpster, when they were placed there, and if they were the same exact

items used in the commission” of the crimes. (App. Vol. 4 at 11). Lastly,

Mullis asserted that Trial Counsel should have filed a motion to exclude and

should have objected at trial to Nienaber’s testimony because she “had no first-

hand knowledge” or “personal knowledge” of the crimes and Mullis’ identity.

(App. Vol. 4 at 11-12).

9 Mullis also raised a post-conviction claim that the prosecutor had violated his due process rights by calling Nienaber as a witness. Mullis does not raise an appellate challenge to that claim.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 17 of 38 [35] The post-conviction court held a hearing in February 2024. During the hearing,

Mullis appeared pro se and called Detective Kummer and Trial Counsel as

witnesses. Mullis asked Detective Kummer how he could have “possibly

link[ed]” the shirt, shorts, and shoes that had been found in the trash bag in the

communal dumpster of Mullis’ apartment to Mullis. (Post-Conviction Tr. Vol.

2 at 11). Detective Kummer explained that, in addition to the clothing items,

the trash bag also contained items with Mullis’ name and Mullis’ mother’s

name on them. Mullis had Detective Kummer confirm his trial testimony that

he did not know if the trash bag had been placed in the dumpster before or after

the burglary. Mullis then asked Detective Kummer if he was “sticking with the

same story that the clothes were linked to [Mullis] via the burglary[,]” and

Detective Kummer responded in the affirmative. (Post-Conviction Tr. Vol. 2 at

13). During cross-examination, Detective Kummer further explained that the

items in the trash bag were connected to Mullis because Mullis’ DNA was on

the discarded shoes. Additionally, Detective Kummer confirmed that the shirt

and pants from the trash bag matched what Mullis was wearing in the

surveillance videos.

[36] Mullis questioned Trial Counsel about why he had not filed pretrial motions,

such as a motion to exclude or suppress, and why he had not objected to the

surveillance videos, the clothing items found in the dumpster, and Nienaber’s

testimony. Trial Counsel testified that he had not filed a motion to suppress the

surveillance videos because they had been “legally obtained by the State” when

the police had gotten the videos from Centerstone and the pharmacy. (Post-

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 18 of 38 Conviction Tr. Vol. 2 at 32). Trial Counsel also testified that he did not object

to the admission of the surveillance videos because “a sufficient foundation” for

the videos had been laid. (Post-Conviction Tr. Vol. 2 at 23, 31, 41, 44). Trial

Counsel specifically explained that the two witnesses, who represented

Centerstone and the pharmacy, had provided the necessary foundation for the

admission of the videos. Trial Counsel testified that the jury, who had had the

opportunity to see Mullis in the courtroom and the opportunity to review the

video, had made “a determination as to [the] question of fact” of whether

Mullis had been the person in the video, determining that Mullis was that

person. (Post-Conviction Tr. Vol. 2 at 45).

[37] Trial Counsel also testified that there had not been any basis to file a motion to

exclude the clothing found in the dumpster because the clothing had been

“found in a communal dumpster and pursuant to a lawfully executed search

warrant[.]” (Post-Conviction Tr. Vol. 2 at 36). Trial Counsel explained to

Mullis that his job, which he had done, was to “minimize the strength of that

evidence” and to “put some kind of reasonable doubt in the jury’s mind that the

clothes could be another set of clothes that were similar” despite the fact that

Mullis’ DNA had been found on the shoes. (Post-Conviction Tr. Vol. 2 at 37).

[38] Mullis asked Trial Counsel why he had not objected to Nienaber being called as

a witness when she had no personal knowledge of the crime. Trial Counsel

explained to Mullis that Nienaber had not been called as an eyewitness to the

crimes and that she had testified to Mullis’ identification, which was a question

of fact for the jury to ultimately decide. Trial Counsel testified that counsel’s

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 19 of 38 job had been to cross-examine Nienaber and that “the basis of [counsel’s] cross

examination [had been] to challenge the credibility and strength of [Nienaber’s]

testimony.” (Post-Conviction Tr. Vol. 2 at 24). Trial Counsel further explained

to Mullis that Nienaber had been an employee of Centerstone and had had

contact and personal interaction with Mullis and that her identification

testimony was a question of fact that counsel had tried to “discredit” during

cross-examination and her identification of Mullis. (Post-Conviction Tr. Vol. 2

at 26).

[39] Following the hearing, the post-conviction court issued an order denying

Mullis’ petition for post-conviction relief. In regard to Mullis’ claims of

ineffective assistance of trial counsel, the post-conviction court found that

Mullis had failed to meet his burden of showing that Trial Counsel’s

performance was deficient and had further failed to show that he had been

prejudiced.

[40] Mullis now appeals.

Decision [41] Mullis argues that: (1) the trial court committed fundamental error in the

admission of Nienaber’s testimony; (2) there is insufficient evidence to support

his burglary conviction; (3) his aggregate sentence is inappropriate; and (4) the

post-conviction court erred by denying his petition for post-conviction relief.

We will review each argument in turn.

1. Direct Appeal Issue – Fundamental Error in Admission of Evidence Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 20 of 38 [42] Mullis first challenges the trial court’s admission of Nienaber’s trial testimony.

Specifically, Mullis contends that the trial court should have excluded

Nienaber’s testimony under Evidence Rules 602 and 701 because Nienaber

“had no personal knowledge of the alleged criminal offense” and had been

“permitted to speculate as to the identity of the perpetrator” when she had been

“permitted to testify” that a still photograph of the suspect in the pharmacy

resembled Mullis’ photograph in his Centerstone patient file. (Mullis’ Br. 13-

14). Mullis acknowledges that he did not object to the testimony at trial. His

failure to object to the testimony results in waiver of any argument regarding its

admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure

to object at trial waives the issue for review unless fundamental error

occurred.”), reh’g denied. Mullis recognizes this procedural default and argues

that the admission of the testimony constituted fundamental error. 10

[43] “[F]undamental error in the evidentiary decisions of our trial courts is especially

rare.” Merritt v. State, 99 N.E.3d 706, 709 (Ind. Ct. App. 2018), trans. denied.

The fundamental error exception “is extremely narrow and encompasses only

errors so blatant that the trial judge should have acted independently to correct

the situation.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal

quotation marks and citation omitted). “An error is fundamental, and thus

reviewable on appeal, if it made a fair trial impossible or constituted a clearly

10 Mullis’ appellate counsel has indicated that despite Mullis’ failure to object to Nienaber’s testimony, “Mullis has expressly instructed [appellate] counsel to challenge the admission of Nienaber’s testimony.” (Mullis’ Br. 14).

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 21 of 38 blatant violation of basic and elementary principles of due process presenting an

undeniable and substantial potential for harm.” Id. (internal quotation marks

and citation omitted). “Harm is not shown by the fact that the defendant was

ultimately convicted; rather harm is found when error is so prejudicial as to

make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239. “Fundamental

error is meant to permit appellate courts a means to correct the most egregious

and blatant trial errors that otherwise would have been procedurally barred, not

to provide a second bite at the apple for defense counsel who ignorantly,

carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663,

668 (Ind. 2014), reh’g denied.

[44] Evidence Rule 602 provides that “[a] witness may testify to a matter only if

evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter” and that “[e]vidence to prove personal

knowledge may consist of the witness’s own testimony.” Evidence Rule 701

provides that “[i]f a witness is not testifying as an expert, testimony in the form

of an opinion is limited to one that is: (a) rationally based on the witness’s

perception; and (b) helpful to a clear understanding of the witness’s testimony

or to a determination of a fact in issue.”

[45] Turning to Mullis’ challenge to the admission of Nienaber’s testimony, we

conclude that Mullis has failed to meet his burden of showing fundamental

error. Mullis has failed to show how the admission of Nienaber’s testimony

made a fair trial impossible and why the circumstances in this case were

egregious. Here, Nienaber testified that she was familiar with Mullis as a

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 22 of 38 patient at Centerstone and that she had previously interacted with him while at

Centerstone. Nienaber had also seen Mullis’ photograph in his Centerstone

patient file. Additionally, Nienaber explained how she had seen the still

photographs of the suspect on social media, believed that the suspect resembled

Mullis, reviewed Mullis’ patient photo and his driver’s license photo in his file,

and then ultimately notified the police of that identification belief. Nienaber

had personal knowledge of her prior interaction with Mullis, and her testimony

about how she had identified Mullis as being the person in the still photograph

was rationally based on her perception and was helpful to a clear understanding

of her testimony and the issue of identification. Therefore, we conclude that

Mullis has failed to show that the trial court committed fundamental error

when it did not independently or sua sponte exclude Nienaber’s testimony. See

Goodson v. State, 747 N.E.2d 1181, 1184 (Ind. Ct. App. 2001) (holding that the

trial court did not abuse its discretion in allowing lay opinion testimony of

police officers, who were familiar with the defendant, to testify to the identity of

the defendant in a videotape and still photographs where their testimony was

helpful to the jury in determining the identity of the person depicted therein),

trans. denied; Gibson v. State, 709 N.E.2d 11, 15 (Ind. Ct. App. 1999) (holding

that lay opinion testimony, by a person who was not an eyewitness to the

charged offenses, regarding the identification of a person depicted in a

surveillance video was admissible evidence under Evidence Rule 701 as being

helpful to the jury in reaching a decision about the identity of the person

depicted in the surveillance video admitted as a silent witness), trans. denied.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 23 of 38 2. Direct Appeal Issue – Sufficiency of Evidence

[46] Mullis next argues that the evidence was insufficient to support his burglary

conviction only. Specifically, he “challenges the sufficiency of the evidence

identifying him as the perpetrator of the burglary.” (Mullis’ Br. 15).

[47] “Sufficiency-of-the-evidence claims trigger a deferential standard of review in

which we neither reweigh the evidence nor judge witness credibility, instead

reserving those matters to the province of the jury.” Hancz-Barron v. State, 235

N.E.3d 1237, 1244 (Ind. 2024) (cleaned up). “A conviction is supported by

sufficient evidence if there is substantial evidence of probative value supporting

each element of the offense such that a reasonable trier of fact could have found

the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). “In

conducting that review, we consider only the evidence that supports the jury’s

determination, not evidence that might undermine it.” Id.

[48] To convict Mullis of burglary, the State was required to prove that Mullis broke

and entered the building or structure of Centerstone and/or the pharmacy, with

intent to commit a felony or theft therein. See I.C. § 35-43-2-1. Our Indiana

Supreme Court has explained that “[t]he identity of an accused is a question of

fact, not law.” Whitt v. State, 499 N.E.2d 748, 750 (Ind. 1986). “Therefore, the

weight to be given identification evidence, and any determination of whether it

is satisfactory and trustworthy, is a function of the trier of fact.” Id.

[49] Our review of the record reveals that the State provided sufficient evidence to

support Mullis’ conviction. The State’s evidence showed that the pharmacy’s

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 24 of 38 alarm had been triggered around 5:45 a.m. on May 31, 2022, and when the

police arrived on the scene later that morning, there was damage to the outer

doors of the Centerstone building and to the pharmacy’s door and alarm

monitor. The surveillance videos from the pharmacy showed that a male

suspect, who was wearing gloves, a t-shirt, shorts, and white tennis shoes with

stripes on the side, broke into the pharmacy around 5:45 a.m. The videos

showed that the suspect, who remained in the pharmacy between that time and

a little after 6:00 a.m., took cash from the cash register and took bottles of

medication and placed them into a plastic bag. The surveillance videos from

Centerstone showed that same male suspect, who was wearing a gray t-shirt,

blue jean shorts, and white tennis shoes and was carrying a plastic bag, after he

had exited the Centerstone building and walked in the parking lot towards a

line of trees. After the police took still photographs from the surveillance videos

and posted them on social media, “multiple people[,] both within law

enforcement [and] also [in] the general public[,]” provided Mullis’ name as the

person in the photographs. (Trial Tr. Vol. 2 at 235). The State admitted these

videos and still photographs of the suspect in the pharmacy for the jury to

review. Additionally, Nienaber and Detective Kummer identified the suspect

in the photographs and videos as being Mullis. The State’s evidence also

revealed that the police found a trash bag in Mullis’ public dumpster at his

apartment complex, and that trash bag contained a gray t-shirt, blue jean shorts,

and white tennis shoes with stripes on the side, all of which were consistent

with the clothing worn by the suspect from the security videos. DNA testing of

the tennis shoes revealed that Mullis’ DNA matched the DNA on the tennis Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 25 of 38 shoes. The trash bag also contained two appointment cards from Centerstone

that had Mullis’ first name of “Brent” on them as well as a prescription bottle

with Mullis’ mother’s name on it. Furthermore, the State introduced evidence

that an analysis of Mullis’ cellphone revealed that, in the week leading up to the

burglary, Mullis had done Google searches on how to deactivate a business

alarm and on how burglars disable alarms. The analysis also revealed that, on

the day of the burglary, Mullis had done Google searches on medications that

were the same medications that had been stolen from the pharmacy.

[50] The evidence presented during the jury trial supports the jury’s determination

that Mullis perpetrated the burglary. The jury, as finder of fact, reviewed the

evidence and ultimately determined that Mullis was the person depicted in the

surveillance videos and still photographs as the person who had perpetrated the

burglary. Mullis’ argument challenging the sufficiency of the evidence is

nothing more than a request to reweigh the evidence and the jury’s credibility

determination, which we will not do. See Hancz-Barron v. State, 235 N.E.3d at

1244. Accordingly, we affirm Mullis’ burglary conviction.

3. Direct Appeal Issue – Inappropriate Sentence

[51] Mullis next argues that his aggregate sentence for his convictions and his

habitual offender adjudication is inappropriate. We disagree.

[52] We may revise a sentence if it is inappropriate in light of the nature of the

offense and the character of the offender. Ind. Appellate Rule 7(B). The

defendant has the burden of persuading us that his sentence is inappropriate.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 26 of 38 Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

guiding principles for trial courts and those charged with improvement of the

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

analysis is not to determine whether another sentence is more appropriate but

rather whether the sentence imposed is inappropriate.” Conley v. State, 972

N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

reh’g denied.

[53] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence “is the starting point the Legislature has selected as an

appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

Mullis was convicted of Level 5 felony burglary, Class A misdemeanor theft,

and Class B misdemeanor criminal mischief, and he was also determined to be

an habitual offender. A person who commits a Level 5 felony “shall be

imprisoned for a fixed term of between one (1) year and six (6) years, with the

advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). A person who

commits a Class A misdemeanor “shall be imprisoned for a fixed term of not

more than one (1) year[.]” I.C. § 35-50-3-2. A person who commits a Class B

misdemeanor “shall be imprisoned for a fixed term of not more than one

hundred eighty (180) days[.]” I.C. § 35-50-3-3. Additionally, at the time of

Mullis’ offenses, the habitual offender statute provided that a trial court “shall

sentence a person found to be a habitual offender to an additional fixed term

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 27 of 38 that is between . . . two (2) years and six (6) years” for a person convicted of a

Level 5 felony. I.C. § 35-50-2-8(i)(2) (2022).11 Here, the trial court imposed a

six-year sentence for Mullis’ Level 5 felony burglary conviction enhanced by six

years for his habitual offender adjudication, a one-year sentence for his Class A

misdemeanor theft conviction, and a 180-day sentence for his Class B

misdemeanor criminal mischief conviction. The trial court ordered for these

sentences to be served concurrent to one another, resulting in an aggregate

sentence of twelve (12) years.

[54] We first turn to the nature of Mullis’ offenses. “The nature of the offense is

found in the details and circumstances surrounding the offense and the

defendant’s participation.” Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017).

Here, Mullis broke and entered the Centerstone building and the pharmacy,

damaged Centerstone’s and the pharmacy’s property, and stole money and

medications, including controlled and non-controlled substances, from the

pharmacy. The controlled substances that had been stolen included 400-500

tablets of Alprazolam or Xanax in several strengths, a bottle of

Methylphenidate, and a bottle of Promethazine with Codeine. Mullis argues

that his sentence is inappropriate in light of the nature of his offenses because he

did not physically harm anyone. However, the trial court noted that Mullis had

burglarized the place where he had been receiving treatment and that the

11 Effective July 1, 2023, the legislature amended INDIANA CODE § 35-50-2-8(i)(2) to provide that a trial court “shall sentence a person found to be a habitual offender to an additional fixed term that is between . . . three (3) years and six (6) years” for a person convicted of a Level 5 felony.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 28 of 38 “gratitude he gave was by busting in the doors[.]” (Trial Tr. Vol. 3 at 134).

Additionally, the trial court noted that Mullis had taken medicines from the

pharmacy that other patients had needed and further resulted in the pharmacy

“shutting down . . .for a period of time so that persons could not get [the]

assistance or help that they needed.” (Trial Tr. Vol. 3 at 134).

[55] In reviewing Mullis’ character, we note that “[a] defendant’s life and conduct

are illustrative of his or her character.” Morris v. State, 114 N.E.3d 531, 539

(Ind. Ct. App. 2018), trans. denied. Mullis was forty-nine years old at the time of

sentencing, and he has an extensive criminal history, including felony

convictions, a misdemeanor conviction, and probation violations. Mullis has

multiple prior burglary convictions and was on parole from two burglary

convictions when he committed the burglary, theft, and criminal mischief

offenses in this case. Mullis’ felony convictions include five burglary

convictions and a theft conviction with executed time served in the DOC.

Mullis also has a felony conviction for escape after he had escaped from the

DOC, stole a truck, and fled to Georgia. Additionally, Mullis has a lengthy

juvenile history that spanned from age seven to age sixteen when he had been

waived to adult court. Mullis points to the sixteen-year period prior to his

current offenses and suggests that this period reflects a positive view of his

character because he did not have any criminal offenses or convictions during

that time period. However, he fails to acknowledge that this lapse in criminal

activity occurred because he was incarcerated in the DOC during that period for

two felony burglary convictions and an habitual offender adjudication. The PSI

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 29 of 38 also reveals that Mullis had started using methamphetamine when he was

eighteen years old and had used it until the time of his arrest in 2022.

Additionally, Mullis’ outbursts and behavior toward the trial court at the end of

trial and during the sentencing hearing reveal Mullis’ poor character and his

disrespect and disdain for the judicial system and law enforcement.

[56] Mullis has not persuaded us that his aggregate sentence for his burglary, theft,

and criminal mischief convictions and his habitual offender adjudication is

inappropriate. Therefore, we affirm the sentence imposed by the trial court.

4. Post-Conviction Issue – Ineffective Assistance of Trial Counsel

[57] As part of Mullis’ appeal of the post-conviction court’s order, he contends that

the post-conviction court erred by denying him relief on his claim of ineffective

assistance of trial counsel. We disagree.

[58] “[P]ost-conviction proceedings do not grant a petitioner a ‘super-appeal’ but are

limited to those issues available under the Indiana Post-Conviction Rules.”

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied. “In

post-conviction proceedings, the petitioner bears the burden of establishing his

claims by a preponderance of the evidence.” Isom v. State, 170 N.E.3d 623, 632

(Ind. 2021), reh’g denied. “Where, as here, the petitioner is appealing from a

negative judgment denying post-conviction relief, he must establish that the

evidence, as a whole, unmistakably and unerringly points to a conclusion

contrary to the post-conviction court’s decision.” Id. (internal quotation marks

and citation omitted).

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 30 of 38 [59] Before we address Mullis’ argument, we note that the judge who presided over

Mullis’ jury trial is also the judge who presided over the post-conviction

proceedings. “[I]n such a case, the judge is uniquely situated to assess whether

trial counsel’s performance fell below an objective standard of reasonableness

and whether, but for counsel’s unprofessional conduct, there was a reasonable

probability that a different verdict would have been reached.” Hinesley v. State,

999 N.E.2d 975, 982 (Ind. Ct. App. 2013), reh’g denied, trans. denied.

Accordingly, the post-conviction court’s findings and judgment are “entitled to

‘greater than usual deference.’” Id. (quoting McCullough v. State, 973 N.E.2d 62,

75 (Ind. Ct. App. 2012), trans. denied). See also State v. Dye, 784 N.E.2d 469, 476

(Ind. 2003) (noting that because the same judge presided at both the original

trial and post-conviction hearing, the judge was in “an exceptional position” to

assess weight and credibility of the factual evidence and whether the defendant

was deprived of a fair trial).

[60] A claim of ineffective assistance of trial counsel requires a petitioner to show

that: (1) counsel’s performance was deficient by falling below an objective

standard of reasonableness based on prevailing professional norms; and (2)

counsel’s performance prejudiced the defendant such that “‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441,

444 (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g

denied), reh’g denied, cert. denied. “A reasonable probability arises when there is a

‘probability sufficient to undermine confidence in the outcome.’” Grinstead v.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 31 of 38 State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694).

“Failure to satisfy either of the two prongs will cause the claim to fail.” French

v. State, 778 N.E.2d 816, 824 (Ind. 2002). “Indeed, most ineffective assistance

of counsel claims can be resolved by a prejudice inquiry alone.” Id. Therefore,

if we can dismiss an ineffective assistance claim on the prejudice prong, we

need not address whether counsel’s performance was deficient. Henley v. State,

881 N.E.2d 639, 645 (Ind. 2008).

[61] A strong presumption arises that counsel rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment. Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). Counsel’s

performance is presumed effective, and a petitioner must offer strong and

convincing evidence to overcome this presumption. Williams v. State, 771

N.E.2d 70, 73 (Ind. 2002). “Isolated poor strategy or bad tactics do not

necessarily amount to ineffective assistance of counsel.” Whitener v. State, 696

N.E.2d 40, 42 (Ind. 1998). “Reasonable strategy is not subject to judicial

second guesses.” Ingalls v. State, 187 N.E.3d 233, 247 (Ind. Ct. App. 2022)

(internal quotation marks and citation omitted), trans. denied. “This Court will

not lightly speculate as to what may or may not have been an advantageous

trial strategy as counsel should be given deference in choosing a trial strategy

which, at the time and under the circumstances, seems best.” Whitener, 696

N.E.2d at 42.

[62] We now turn to Mullis’ arguments regarding ineffective assistance of trial

counsel. Mullis argues that Trial Counsel rendered ineffective assistance by

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 32 of 38 failing to object to the admission of: (1) the surveillance videos; (2) the clothing

and shoes found in Mullis’ communal dumpster; and (3) Nienaber’s

testimony.12

[63] To demonstrate ineffective assistance of trial counsel for failure to object, a

petitioner must prove that an objection would have been sustained if made.

Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). Additionally, the

petitioner must show that he was prejudiced by counsel’s failure to make an

objection. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind. 2010), reh’g denied.

[64] Mullis first argues that Trial Counsel should have objected to the admission of

the surveillance videos based on a lack of foundation for admission under the

silent witness theory. “The silent witness theory is an application of Evidence

Rule 901.” Kirby v. State, 217 N.E.3d 575, 584 (Ind. Ct. App. 2023), trans.

denied. Indiana Evidence Rule 901(a) provides that “[t]o satisfy the requirement

of authenticating or identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the item is what the

proponent claims it is.” Our Court has explained that “[p]hotographs and

videos can be authenticated through either a witness’s testimony or, in instances

12 When arguing that Trial Counsel “failed to oppose admission” of the surveillance videos and the clothing by objecting at trial, Mullis also makes a passing assertion that Trial Counsel also should have filed a motion in limine regarding videos and clothing. (Mullis’ Br. 20, 22). Mullis makes no cogent argument nor provides any relevant caselaw regarding such a pretrial motion; therefore, we conclude that he has waived any such argument. See Ind. App. Rule 46(A)(8)(a). See also Griffith v. State, 59 N.E.3d 947, 958 n.5 (Ind. 2016) (noting that the defendant had waived his arguments by failing to provide cogent argument).

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 33 of 38 in which no witness observed what a photograph or video portrays, the silent-

witness theory.” McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017)

(citing 13 Robert L. Miller, Jr., Indiana Practice Series: Evidence § 901.209 (4th ed.

2016)) (emphasis added).

[65] The silent witness theory permits the admission of surveillance footage as

substantive rather than demonstrative evidence. McCallister v. State, 91 N.E.3d

554, 561 (Ind. 2018). When surveillance videos and photographs are admitted

as substantive evidence, they serve “as silent witness[es] as to what activity is

being depicted.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (internal

quotation marks and citation omitted), cert denied. For evidence to be admitted

as substantive evidence under the silent witness theory, “there must be a strong

showing of authenticity and competency, including proof that the evidence was

not altered.” McCallister, 91 N.E.3d at 561-62. See also Knapp, 9 N.E.3d at 1282

(explaining that the foundation for the admission of silent witness photographs

and surveillance videos requires “identifying testimony of the scene” of the

photographs and surveillance videos “sufficient to persuade the trial court . . . of

their competency and authenticity to a relative certainty”) (emphasis in original).

“In order to authenticate videos or photographs using the silent-witness theory,

there must be evidence describing the process or system that produced the

videos or photographs and showing that the process or system produced an

accurate result.” McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017)

(citing Evid. R. 901(b)(9)). “Surveillance video footage may be properly

authenticated and admissible under the silent-witness theory when the

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 34 of 38 proponent presents testimony from someone with knowledge on the security

system that produced the video or image, on the integrity of the system’s

process, and on whether [the] video or image was altered.” Irwin v. State, 229

N.E.3d 567, 571 (Ind. Ct. App. 2024) (internal quotation marks and citation

omitted), trans. denied.

[66] During the post-conviction hearing, Mullis asked Trial Counsel why he had not

objected to the admission of the surveillance videos, and Trial Counsel testified

that he had not objected because “a sufficient foundation” for the videos had

been laid. (Post-Conviction Tr. Vol. 2 at 23, 31, 41, 44). Trial Counsel

specifically explained that the two witnesses, who represented Centerstone and

the pharmacy, had provided the necessary foundation for the admission of the

videos. “Few points of law are as clearly established as the principle that

[t]actical or strategic decisions will not support a claim of ineffective

assistance.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (internal

quotation marks and citation omitted), reh’g denied. Moreover, as the post-

conviction court concluded, the State properly laid the foundation for the

surveillance videos from Centerstone and the pharmacy through Brown’s and

Knapp’s testimonies regarding the surveillance videos.

[67] Because Mullis has failed to demonstrate that a foundation objection would

have been sustained, he has failed to show that Trial Counsel rendered deficient

performance. See Benefield, 945 N.E.2d at 799 (explaining that to demonstrate

ineffective assistance of trial counsel for failure to object, a petitioner must

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 35 of 38 prove that an objection would have been sustained if made). Accordingly, we

affirm the post-conviction court’s denial of post-conviction relief on this claim. 13

[68] Mullis next argues that Trial Counsel rendered ineffective assistance because he

failed to object to the admission of the clothing and shoes found in Mullis’

communal dumpster based on relevancy under Evidence Rule 401 and

prejudice under Evidence Rule 403. Specifically, Mullis contends that Trial

Counsel should have objected that the clothing and shoes were not relevant and

that these items were “unduly prejudicial to Mullis as it allowed the . . . State’s

witnesses to speculate that the clothing items located in the dumpster with

Mullis’ DNA on them looked like clothing items in a surveillance video.”

(Mullis’ Br. 22).

[69] Although Mullis raised an ineffective assistance of counsel claim in his post-

conviction petition regarding counsel’s failure to object to the clothing and

shoes, that claim was not based on a failure to raise a relevancy or prejudice

argument. Because Mullis’ appellate argument on this claim is different from

his claim raised in his post-conviction petition, we conclude that he cannot raise

it for the first time on appeal. See Isom, 170 N.E.3d at 636 (explaining that a

petitioner could not raise an appellate argument on an ineffective assistance of

13 Mullis’ appellate counsel also asserts that Mullis has “directed” appellate counsel to cite to Bergner v. State, 397 N.E.2d 1012 (Ind. Ct. App. 1979) and to argue that a trial court must hold a pretrial proceeding in order to have the State establish the foundation under the silent witness theory. (Mullis’ Br. 21). We have set out above the relevant foundation that is required for the State to admit surveillance videos under the silent witness theory, and we reject Mullis’ argument.

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 36 of 38 counsel claim that was different from the ineffective assistance of counsel basis

raised in his post-conviction petition). See also Ind. Post-Conviction Rule 1(8).

Accordingly, we affirm the post-conviction court’s denial of post-conviction

relief on this claim.14

[70] Lastly, Mullis argues that Counsel rendered ineffective assistance because he

failed to object to the admission of Nienaber’s testimony based on Evidence

Rules 602 and 701. We have already addressed the admissibility of Nienaber’s

testimony under these evidentiary rules when we addressed Mullis’

fundamental error argument above and concluded that there was no

fundamental error in the admission of her testimony. Accordingly, we rely on

our previous analysis and, for those same reasons, conclude that Mullis has

failed to show that an objection to Nienaber’s testimony based on those

evidentiary rules would have been sustained. Accordingly, Mullis has failed to

14 Even if Mullis had raised these specific objection bases in his petition, he has still failed to show that he was entitled to post-conviction relief on this ineffective assistance of counsel claim because he has failed to show that such relevancy and prejudice objections would have been sustained. The clothing and shoes found in the trash bag in the communal dumpster were consistent with the clothing and shoes worn by the suspect in the surveillance videos and were relevant and probative to the issue of whether Mullis was the suspect in the videos. “The identity of an accused is a question of fact, not law[,]” and “the weight to be given identification evidence . . . is a function of the trier of fact.” Whitt, 499 N.E.2d at 750. All relevant evidence is necessarily prejudicial in a criminal prosecution. Wages v. State, 863 N.E.2d 408, 412 (Ind. Ct. App. 2007), reh’g denied, trans. denied. However, “[t]he danger of unfair prejudicial impact arises from the potential for a jury to substantially overestimate the value of the evidence, or its potential to arouse or inflame the passions or sympathies of the jury.” Id. (emphasis added). Mullis has not shown that the jury substantially overestimated the value of the evidence or that the evidence aroused or inflamed the passions of the jury. Because Mullis has failed to show that an objection based on relevancy or prejudice would have been sustained, he has failed to show that Trial Counsel rendered deficient performance. See Benefield, 945 N.E.2d at 799 (explaining that to demonstrate ineffective assistance of trial counsel for failure to object, a petitioner must prove that an objection would have been sustained if made).

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 37 of 38 show that Trial Counsel rendered ineffective assistance of counsel, and we

affirm the post-conviction court’s denial of relief on this claim.

[71] Affirmed.

May, J., and Brown, J., concur.

ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-PC-1025 | March 28, 2025 Page 38 of 38