James C. Absher v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 22, 2021
• Docket: 20A-PC-1227
• Status: Published

Opinion

FILED Jan 22 2021, 9:19 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Amy E. Karozos Theodore E. Rokita Public Defender of Indiana Attorney General of Indiana Lindsay Van Gorkom J.T. Whitehead Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James C. Absher, January 22, 2021 Appellant-Petitioner, Court of Appeals Case No. 20A-PC-1227 v. Appeal from the Floyd Circuit Court State of Indiana, The Honorable Maria D. Granger, Appellee-Respondent Special Judge Trial Court Cause No. 22C01-1311-PC-12

Crone, Judge.

Case Summary [1] Following his convictions for Count 1, class A felony child molesting, Count 2,

class A felony child molesting, and Count 3, class C felony child molesting,

James C. Absher sought and was denied post-conviction relief (PCR). He now

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 1 of 37 appeals the denial of his PCR petition, arguing that he is entitled to relief

because his trial and appellate counsel provided ineffective assistance. He

asserts that his trial counsel provided ineffective assistance in two ways: (1)

failing to object to an untimely amendment to the charging information that

added Counts 2 and 3 and (2) failing to object to the prosecutor’s comments

during closing argument. We agree that Absher’s trial counsel provided

ineffective assistance by failing to object to the untimely amendment to the

charging information, and therefore the post-conviction court improperly

denied relief on this claim. However, we reach the opposite conclusion with

respect to Absher’s claim regarding his trial counsel’s failure to object to the

prosecutor’s comments. Absher also asserts that his appellate counsel provided

ineffective assistance by failing to raise a claim that the evidence was

insufficient to support his conviction for Count 2. We agree.1 Accordingly, we

affirm in part, reverse in part, and remand with instructions to vacate the

convictions and sentences for Counts 2 and 3.

Facts and Procedural History [2] Absher and Laura Rawlings lived together and were involved in a romantic

relationship from 1997 until 2001. They had a daughter together, J.L. By May

of 2004, Absher and Rawlings were separated. Rawlings lived with five-year-

1 Because of our resolution of these issues, we need not address Absher’s arguments that his appellate counsel provided ineffective assistance by failing to competently argue that the untimely amendment to the charging information was fundamental error and by failing to raise the issue that his 100-year aggregate sentence was inappropriate.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 2 of 37 old J.L. and Rawlings’s two other children in a two-story house. Absher

sometimes visited the children at the house. On May 26, 2004, Absher came to

Rawlings’s house to visit and spent the night. Absher, Rawlings, and the

children slept in the same bedroom, with Absher and Rawlings sleeping on the

floor, and the children sleeping on the bed. Trial Tr. Vol. 1 at 54.

[3] The following morning, Absher and Rawlings woke up and went downstairs to

the kitchen. Absher offered to go back upstairs, wake up J.L., and change the

youngest child’s diaper. After Absher had been gone about fifteen minutes,

Rawlings decided to go upstairs because she thought it was taking too long to

change a diaper. Id. at 60-61. When she got upstairs, she looked into the

bedroom through the open door and saw J.L. lying on her back on the floor

with her underwear pulled down and her legs apart. Id. at 63. Absher was on

his knees straddling J.L. Id. at 64. His jeans and underwear were pulled down

below his knees. Id. at 64-65. His right hand was holding his penis, and his left

hand was on J.L.’s lower abdomen, with his fingers toward her stomach and his

thumb touching her “vagina area.” Id. at 66. Rawlings yelled at Absher and

pushed him away. Absher asked her not to call the police and promised it

would not happen again. Id. at 55. Rawlings said that that was “not good

enough” and called the police. Id. When the police arrived, Absher fled.

[4] New Albany Police Department Sergeant Sherri Knight interviewed J.L. The

audiotape of the interview was admitted at trial without objection. J.L. told

Sergeant Knight that Absher touched the inside of her “coochie[,]” J.L.’s term

for her sex organ, with his “weenie.” Trial Confidential Ex. Vol. 1 at 51-52;

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 3 of 37 Trial Tr. Vol. 1 at 227-28. J.L. said that when Absher put his weenie in her

coochie, it “felt bad.” Trial Confidential Ex. Vol. 1 at 52; Trial Tr. Vol. 1 at

229-30. Sergeant Knight asked J.L. whether Absher’s weenie touched any

other part of J.L.’s body, and she said no. Trial Confidential Ex. Vol. 1 at 52;

Trial Tr. Vol. 1 at 230. Sergeant Knight also asked J.L. whether any other part

of Absher’s body touched her coochie, and she said no. Trial Confidential Ex.

Vol. 1 at 52; Trial Tr. Vol. 1 at 230. Finally, Sergeant Knight asked J.L. if

anyone else had ever touched her coochie, and she said no. Trial Confidential

Ex. Vol. 1 at 54; Trial Tr. Vol. 1 at 230.

[5] After her interview with Sergeant Knight, J.L. was examined by sexual assault

nurse examiner Kathy Scifres. J.L. explained to Scifres that Absher touched

her with his weenie two times, pointing to her “genitalia area” to indicate

where Absher had touched her. Trial Tr. Vol. 1 at 110-11. During Scifres’

examination of J.L., Scifres discovered a three-millimeter vertical abrasion

“oozing a little bit of fluid” and another horizontal abrasion in the labial area,

both of which were recent. Id. at 118-19. Scifres took swabs of J.L.’s genitals

and collected her clothing as evidence.

[6] Police located Absher, and Sergeant Knight interviewed him. His interview

was recorded and admitted at trial without objection, and a transcription of the

recording was admitted as Defendant’s Exhibit 4. Absher told Sergeant Knight

that after he woke J.L. up that morning, he tickled her around her belly button

under her shirt. Trial Confidential. Ex. Vol. 1 at 60. He admitted that he

touched J.L.’s private area with his hand but claimed that it was unintentional.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 4 of 37 Id. at 64-65. When Sergeant Knight told him that J.L. said that he touched her

private area with his penis, Absher stated that he did not remember that

happening, but he guessed that J.L. was telling the truth. Id. at 65. During a

portion of their conversation that was not recorded, Absher told Sergeant

Knight many times that “if [J.L.] said I did it than [sic] I did it[.]” Trial Tr. Vol.

2 at 279.

[7] On May 28, 2004, the State charged Absher with one count of class A felony

child molesting, alleging that Absher, “a person of at least twenty-one years of

age, did perform sexual intercourse with [J.L.], a child under the age of

fourteen, to wit: 5.” Direct Appeal App. Vol. 1 at 26.

[8] At the initial hearing, the trial court set the omnibus date for July 27, 2004.

Trial was originally scheduled for August 9, 2004, but following numerous

continuances, it was rescheduled for June 12, 2006. On June 9, 2006, the State

filed a motion to amend the charging information to designate the original class

A felony child molesting count as Count 1 and add two new counts. In Count

2, the State charged Absher with class A felony child molesting, alleging that he

performed deviate sexual conduct with J.L. by placing his mouth on her sex

organ. Id. at 114. In Count 3, the State charged Absher with class C felony

child molesting, alleging that he fondled or touched J.L. with the intent to

arouse or satisfy his sexual desires. Id. Absher did not object to the motion to

amend. On the same date, the State made a plea offer to Absher. On June 13,

2006, Absher refused the State’s plea offer, and the trial court granted the

State’s motion to amend. The trial court also granted Absher’s request for a

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 5 of 37 continuance. Trial commenced on August 15, 2006. On August 18, 2006, the

jury found Absher guilty as charged. On September 18, 2006, the trial court

sentenced Absher to an executed term of fifty years each on Counts 1 and 2, to

be served consecutive to each other, and eight years on Count 3, to be served

concurrent with Count 1.

[9] Absher brought a direct appeal of his convictions, arguing that the trial court

erroneously allowed the State to amend its charging information to add Counts

2 and 3 after the expiration of the time limit set forth in Indiana Code Section

35-34-1-5. Absher v. State, 866 N.E.2d 350 (Ind. Ct. App. 2007) (Absher I). In

summary, the Absher I court held that the trial court erred by granting the State’s

motion to amend. Id. at 354. However, because Absher’s trial counsel failed to

preserve the error for appellate review with a timely objection, Absher was

required to establish fundamental error. Id. at 354-55. The Absher I court

concluded that Absher failed to provide cogent argument with citation to

authority to support his legal conclusion that the error was fundamental and

affirmed his convictions. 2 Id. at 356.

2 We note that the Absher I court stated briefly that Absher failed to provide cogent argument on the issue of ineffective assistance of trial counsel. 866 N.E.2d at 356. If a claim of ineffective assistance is raised on direct appeal, “the appellate resolution of the issue acts as res judicata and precludes its relitigation in subsequent post-conviction relief proceedings.” Jewell v. State, 887 N.E.2d 939, 941 (Ind. 2008). However, Absher did not raise this issue in his direct appeal. Rather, it appears that the State raised the question in its appellee’s brief by asserting that Absher’s trial counsel had not provided ineffective assistance. Absher filed a reply brief, but it did not address the State’s assertion regarding his trial counsel’s effectiveness. At the post- conviction hearing, the State stipulated that Absher’s opportunity to raise ineffective assistance of trial counsel had not been foreclosed by Absher’s appellate counsel in the direct appeal. PCR Tr. Vol. 2 at 111-12, PCR Appellant’s App. Vol. 2 at 159. In this appeal, the State does not contend that Absher is barred from

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 6 of 37 [10] In October 2013, Absher, pro se, filed a PCR petition, which, after two

amendments by counsel, took its final form in December 2017. In June 2018,

Judge J. Terrence Cody held an evidentiary hearing on Absher’s PCR petition,

at which Absher’s trial counsel William Eastridge and Lisa Glickfield and his

appellate counsel J. Patrick Biggs testified. In September 2018, the parties filed

proposed findings of fact and conclusions of law. In December 2019, Absher

filed a request for a ruling. In January 2020, Absher filed a praecipe for

withdrawal of submission pursuant to Indiana Trial Rules 53.1(E) and 53.2(E).

In February 2020, the Indiana Supreme Court entered an order withdrawing the

matter from Judge Cody and appointing Maria D. Granger as special judge.

On June 3, 2020, Special Judge Granger issued an order denying Absher’s PCR

petition. This appeal ensued.

Discussion and Decision [11] “Post-conviction proceedings are civil proceedings in which a defendant may

present limited collateral challenges to a conviction and sentence.” Gibson v.

State, 133 N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule

1(1)(b)), cert. denied (2020). “The scope of potential relief is limited to issues

unknown at trial or unavailable on direct appeal.” Id. A defendant who files a

petition for post-conviction relief “bears the burden of establishing grounds for

raising a claim of ineffective assistance of trial counsel. Accordingly, we address his claims regarding his trial counsel.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 7 of 37 relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5);

Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). Because the defendant is

appealing from the denial of post-conviction relief, he is appealing from a

negative judgment:

Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court’s decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation

marks omitted).

[12] Generally, we review the post-conviction court’s factual findings for clear error,

neither reweighing the evidence nor judging the credibility of witnesses.

Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).

Here, the post-conviction court made its ruling on a paper record, and thus we

are reviewing the same information that was available to the post-conviction

court. In such cases, the appellate court owes no deference to the lower court’s

findings. See Baysinger v. State, 835 N.E.2d 223, 224 (Ind. Ct. App. 2005)

(concluding that where trial court ruled on defendant’s petition to file belated

notice of appeal based on a paper record, appellate court owed no deference to

lower court’s findings), trans. denied (2006). Therefore, we review the denial of

Absher’s PCR petition de novo. Id.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 8 of 37 [13] Absher maintains that he is entitled to post-conviction relief because he was

denied the right to effective assistance of trial and appellate counsel guaranteed

by the Sixth Amendment to the United States Constitution. See Strickland v.

Washington, 466 U.S. 668, 686 (1984) (“[T]he right to counsel is the right to

effective assistance of counsel.”) (quoting McMann v. Richardson, 397 U.S. 759,

771 n.14 (1970)). We evaluate a defendant’s claim of ineffective assistance of

counsel using the two-part test articulated in Strickland. Ward v. State, 969

N.E.2d 46, 51 (Ind. 2012). Under this test, the defendant must demonstrate (1)

that counsel’s performance was deficient based on prevailing professional

norms; and (2) that the deficient performance prejudiced the defense. Id.

[14] In assessing whether counsel’s performance was deficient, we note that

“[c]ounsel is afforded considerable discretion in choosing strategy and tactics,

and we will accord that decision deference.” Id. (quoting Pruitt v. State, 903

N.E.2d 899, 906 (Ind. 2009)). Indeed, there is a strong presumption “that

counsel rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Weisheit v. State, 109 N.E.3d

978, 983 (Ind. 2018), cert. denied (2019). A defendant must offer strong and

convincing evidence to overcome this presumption. Ritchie v. State, 875 N.E.2d

706, 714 (Ind. 2007). Isolated poor strategy, inexperience, or bad tactics does

not necessarily constitute ineffective assistance. Hinesley, 999 N.E.2d at 982.

[15] As for the prejudice prong of the Strickland test, a defendant need only show “a

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

the proceeding would have been different.” Middleton v. State, 72 N.E.3d 891,

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 9 of 37 891 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 891-92

(quoting Strickland, 466 U.S. at 694). “Failure to satisfy either prong will cause

the claim to fail[, and] most ineffective assistance of counsel claims can be

resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824

(Ind. 2002) (citation omitted).

Section 1 – Trial counsel provided ineffective assistance by failing to object to the State’s motion to amend the charging information. [16] Absher first argues that his trial counsel’s failure to object to the amendment to

the charging information constitutes deficient performance because the

amendments were clearly prohibited by Indiana Code Section 35-34-1-5(b). He

further asserts that he was prejudiced by counsel’s failure to object because had

trial counsel preserved the issue for appeal, his convictions for the two counts

added by the amendment would have been reversed on direct appeal pursuant

to Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). The State contends that trial

counsel’s failure to object was a strategic decision based on prevailing

professional norms at the time, and therefore his failure to object cannot be

considered deficient performance.

[17] To resolve Absher’s claim, we begin by reviewing the text of Section 35-34-1-5,

which governs amendments to a charging information, two relevant Indiana

Supreme Court cases, and the resolution of Absher’s direct appeal. Turning

first to the text of the statute, we observe that when Absher committed his

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 10 of 37 offenses, the State moved to amend the charging information, and Absher’s

case was up on direct appeal, Section 35-34-1-5(a) permitted an amendment to

the charging information at any time “because of any immaterial defect” and

listed nine such examples, including “(9) any other defect which does not

prejudice the substantial rights of the defendant.” (Emphasis added.) Similarly,

subsection 5(c) permitted, “at any time before, during or after the trial, ... an

amendment to the indictment or information in respect to any defect,

imperfection, or omission in form which does not prejudice the substantial rights of

the defendant.” (Emphasis added.) In contrast, subsection 5(b) provided the

following time limitations:

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to:

(1) thirty (30) days if the defendant is charged with a felony; or

(2) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;

before the omnibus date.

(Emphasis added.)

[18] In Haak v. State, 695 N.E.2d 944 (Ind. 1998), our supreme court reviewed

Haak’s claim that an amendment to the charging information made well after

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 11 of 37 the omnibus date violated Section 35-34-1-5. In so doing, the Haak court

explained the application of the statute as follows:

Indiana Code § 35-34-1-5 … broadly distinguishes between amendments of “immaterial defect” or “form” and amendments of “substance.” The former by virtue of subsections (a) and (c) may be made at any time if there is no prejudice to the defendant. Pursuant to subsection (b), the latter require written notice to the defendant of the proposed change and may not occur after specified times in advance of the omnibus date. The omnibus date here was in 1994 and the amendment was in 1996. Thus, if the amendment was of substance, or prejudicial to the defendant even if of form, it was impermissible under the statute.

Id. at 951 (footnote omitted). The Haak court explained the form/substance

distinction as follows:

If the defense under the original information would be equally available after the amendment is made and the accused’s evidence would be equally applicable to the information in one form as in the other, the amendment is one of form and not of substance. An amendment is of substance only if it is essential to the making of a valid charge of the crime.

Id. (quoting Sharp v. State, 534 N.E.2d 708, 714 (Ind. 1989), cert. denied (1990)).

The Haak court concluded that the amendment at issue, which involved the

deletion of an overt act in furtherance of a conspiracy, was one of form, not

substance, and was permissible at any time if not prejudicial to Haak. Id. at

952. The Haak court concluded that the amendment did not prejudice Haak’s

substantial rights, and thus the trial court did not err in allowing the

amendment three weeks before trial. Id.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 12 of 37 [19] On January 16, 2007, while Absher’s direct appeal was pending, our supreme

court handed down Fajardo, 859 N.E.2d 1201, wherein the court reversed

Fajardo’s conviction due to a violation of Section 35-34-1-5. There, the

supreme court concluded that the trial court abused its discretion by granting,

over defense counsel’s objection, the State’s motion to amend the charging

information to add a count of class A felony child molesting. Id. at 1208. In

reaching this conclusion, the Fajardo court considered the text of Section 35-34-

1-5 and described its application as follows:

This statutory language … conditions the permissibility for amending a charging information upon whether the amendment falls into one of three classifications: (1) amendments correcting an immaterial defect, which may be made at any time, and in the case of an unenumerated immaterial defect, only if it does not prejudice the defendant’s substantial rights; (2) amendments to matters of form, for which the statute is inconsistent, subsection (b) permitting them only prior to a prescribed period before the omnibus date, and subsection (c) permitting them at any time but requiring that they do not prejudice the substantial rights of the defendant; and (3) amendments to matters of substance, which are permitted only if made more than thirty days before the omnibus date for felonies, and more than fifteen days in advance for misdemeanors

Id. at 1204-05 (citing Haak, 695 N.E.2d at 951). “Therefore,” the Fajardo court

explained, “the first step in evaluating the permissibility of amending an

indictment or information is to determine whether the amendment is addressed

to a matter of substance or one of form or immaterial defect.” Id. at 1207.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 13 of 37 [20] The Fajardo court then observed that although the distinction between matters

of substance and those of form was important in determining whether an

amendment was permissible under Section 35-34-1-5, the manner in which

Indiana courts had applied the distinction had varied over the years.

Specifically, the Fajardo court noted that after this version of subsection 5(b) had

been enacted by the legislature in 1982, “[e]nsuing case law … ha[d] been

inconsistent and conflicting, often reflecting the practice and procedure under prior

statutes, or imprecisely disregarding the subsection 5(b) timeliness requirement

for amendments to substance in favor of the absence of prejudice requirement

that subsections 5(a)(9) and 5(c) apply only to amendments of form.” Id. at

1206 (emphasis added). The Fajardo court identified multiple supreme court

and appellate court cases that “permitted amendments related to matters of

substance simply on grounds that the changes did not prejudice the substantial

rights of the defendant, without regard to whether or not the amendments were

untimely[,]” and cases that “ha[d] not focused upon whether the challenged

amendment was one of form or substance, but ha[d] employed components of

the substance/form test (whether defense equally available and evidence

equally applicable, and whether amendment not essential to making a valid

charge) to assess whether the defendant’s substantial rights were prejudiced.” 3

3 Only one of the supreme court cases identified in Fajardo was handed down after Haak, and that case was Brown v. State, 728 N.E.2d 876 (Ind. 2000), abrogated by Fajardo, 859 N.E.2d 1201. The amendment at issue in Brown was sought by the State after the close of its case in chief. In determining whether the amendment was permissible, our supreme court relied on Section 35-34-1-5(c) and applied components of the substance/form test to conclude that “the availability of Brown’s defense and the applicability of the evidence

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 14 of 37 Id. at 1206-07. The Fajardo court expressly held that the methodology

employed in those cases did not comply with Section 35-34-1-5. Id. at 1207.

Significantly, the Fajardo court made clear that subsection 5(b) prohibited “any

amendment as to matters of substance unless made thirty days before the

omnibus date for felonies and fifteen days before the omnibus date for

misdemeanors.” Id. (footnote omitted). Specifically, “as to an amendment

relating to matters of substance, the statute is clear: the only prerequisite is that

it must be filed the specified number of days before the omnibus date, pursuant

to subsection 5(b).” Id. (citing Haak, 695 N.E.2d at 951).

[21] The Fajardo court next addressed the amendment to Fajardo’s charging

information and concluded that the addition of an entirely new count of class A

felony child molesting to an information that originally charged only one count

of class C felony child molesting was an amendment of substance, which was

permissible only up to thirty days before the omnibus date. Id. at 1208.

Because the amendment was sought after the omnibus date, the court

concluded that it failed to comply with Section 35-34-1-5. Id. Accordingly, the

Fajardo court held that the “defendant’s objection should have been sustained

and the amendment denied.” Id. The court vacated Fajardo’s conviction and

sentence for class A felony child molesting without further examining whether

he suffered any prejudice caused by the amendment. Id.

under the original information was unaffected by the amendment,” and thus “Brown’s substantial rights were not affected.” 728 N.E.2d at 880.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 15 of 37 [22] As previously noted, Fajardo was decided while Absher’s direct appeal was

pending, and the amendment sought in both cases involved the addition of new

counts of child molesting. In Absher’s direct appeal, he relied on Fajardo to

argue that the trial court erroneously permitted the State to amend the charging

information to add a new count of class A felony child molesting and a new

count of class C felony child molesting. In addressing his argument, the Absher

I court concluded that the amendment was one of substance and not form

because it added two new and separate offenses. 866 N.E.2d at 354. The court

reasoned that “Absher’s evidence addressed to disputing the original charge

would not be equally applicable to dispute the specific conduct alleged in the

separate additional charges sought to be added.” Id. Also, the court added, the

amendment was “unquestionably essential to making a valid charge of the

crime.” Id. (quoting Fajardo, 859 N.E.2d at 1208). The Absher I court then

explained that because the amendment sought to modify the charging

information as to matters of substance, it was permissible under Section 35-34-

1-5(b) only up to thirty days before the omnibus date. The court then held that

the amendment, sought almost two years after the omnibus date, was

prohibited under subsection 5(b), and therefore the trial court should have

denied the State’s motion to amend. Id.

[23] Although the Absher I court held that the trial court erred, Absher was not

successful in obtaining reversal of his convictions. The Absher I court noted a

distinction between Absher’s case and Fajardo’s, namely, that while Fajardo

had objected to the amendment and preserved the error for appeal, Absher had

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 16 of 37 not. Id. at 354. The Absher I court observed that Fajardo had not addressed the

manner of appellate review of an alleged violation of Section 35-34-1-5(b) when

the error had not been preserved. The Absher I court concluded that because

Absher had not objected to the amendment, he would have to establish

fundamental error to obtain reversal of the convictions. Id. at 354-55. As for

whether fundamental error occurred, the court noted that Absher failed “to

provide even a single cogent argument or citation to authority supporting his

ultimate conclusions that his trial was unfair.” Id. at 356. The court concluded

that Absher “failed to successfully invoke the doctrine of fundamental error” by

failing to provide a cogent argument with citation to authority. Id. As such, the

court affirmed Absher’s convictions.

[24] “Under [the law of the case] doctrine, the decision of an appellate court

becomes the law of the case and governs the case throughout all of its

subsequent stages, as to all questions which were presented and decided, both

directly and indirectly.” Maciaszek v. State, 113 N.E.3d 788, 791 (Ind. Ct. App.

2018). Accordingly, under the law of the case doctrine, our resolution of

Absher’s claim is informed by the Absher I court’s determinations that the

amendment was a matter of substance that violated Section 35-34-1-5(b), that

the trial court erred in permitting the amendment, and that Absher failed to

provide a cogent argument to support his claim of fundamental error.

[25] Notwithstanding that Absher I establishes that the trial court erred by granting

the motion to amend, the State asserts that trial counsel did not provide

deficient performance by failing to invoke the reasoning of the not-yet-published

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 17 of 37 Fajardo opinion to object to the amendments, citing Reed v. State, 856 N.E.2d

1189, 1197 (Ind. 2006). Appellee’s Br. at 19; see Reed, 856 N.E.2d at 1197

(“[C]ounsel cannot be held ineffective for failing to anticipate or effectuate a

change in existing law[, and] an ineffective assistance claim cannot be based

upon counsel’s failure to argue legal reasoning of cases not yet decided at the

time of appeal.”) (citations omitted). Absher contends that trial counsel was

not required to anticipate or effectuate a change in existing law and that the

need to object to the untimely amendment should have been apparent to trial

counsel based on the clear text of the statute and our supreme court’s opinion in

Haak, 695 N.E.2d 944. In support of his contention, Absher points out that the

Seventh Circuit Court of Appeals has granted habeas corpus relief to Indiana

defendants who sought and were denied post-conviction relief on the basis of

their attorneys’ failure to object to the untimely amendments of their charging

documents, citing Jones v. Zatecky, 917 F.3d 578, 579-80 (7th Cir. 2019) (Jones

III).

[26] Jones was charged with battery in 2005 after attacking his partner. Jones v.

State, 876 N.E.2d 389, 2007 WL 3287457, at *1 (Ind. Ct. App. 2007) (Jones I),

trans. denied (2008). Nine days after the omnibus date, the State moved to

amend the information to add a charge of criminal confinement. Id. at *2.

Jones’s attorney did not object, and the trial court granted the State’s motion.

Jones filed a direct appeal, arguing that the trial court erred by allowing the

amendment in violation of Section 35-34-1-5. Id. Although Section 35-34-1-5

had been amended by the time of Jones’s appeal, the Jones I court explained

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 18 of 37 that because Jones committed his offenses before the legislature amended the

statute, its review of his claim was based on the prior statute. 4 Id. at *11 n.2.

The Jones I court agreed with Jones that the trial court had erroneously

permitted the amendment because the amendment was one of substance that

was filed after the omnibus date. Id. at *3. However, the Jones I court

concluded that because Jones’s trial counsel had failed to object to the

amendment on the same grounds, the issue was waived. Id. at *4. Jones filed

for post-conviction relief, but his petition was denied. Jones v. State, 46 N.E.3d

501, 2016 WL 359276, at *2-3 (Ind. Ct. App. 2016) (Jones II), trans. denied.

[27] Jones then filed a pro se habeas corpus petition in federal court. In reviewing

his petition, the Seventh Circuit stated,

At the time of David Jones’s arrest and prosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified an “omnibus date” and allowed prosecutors to make substantive amendments to pending charges only up to 30 days before the omnibus date. Seven years earlier, in a case called Haak v. State, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Supreme Court had confirmed the strict nature of this deadline. Disregarding this rule, in Jones’s case the state moved nine days after the omnibus date to amend the charging instrument to add a new and highly consequential charge of criminal confinement. Jones’s attorney did not object to this untimely amendment, and Jones was ultimately convicted of the confinement charge.

4 The Jones I court did not consider whether the amended version could be applied retroactively. As explained more fully below, our courts have applied it retroactively.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 19 of 37 According to the state, there is nothing unique about Jones’s case. It tells us that defense attorneys around Indiana routinely ignored both the clear text of the statute and the Haak decision and allowed prosecutors to make untimely amendments. If that is an accurate account, it is hardly reassuring. For a lawyer to fail to take advantage of a clear avenue of relief for her client is no less concerning because many others made the same error—if anything, it is more so.

Jones III, 917 F.3d at 579-80 (footnote omitted). Accordingly, the Seventh

Circuit concluded that based on the clear language of Section 35-34-1-5 and the

Indiana Supreme Court’s opinion in Haak, 5 Jones had a strong argument for

dismissing one of the charges against him, but his trial counsel failed to pursue

it, and therefore his trial counsel’s performance fell below the constitutional

minimum. Id. at 581-82.

[28] As for prejudice to Jones, the Seventh Circuit stated that it was “easy to find a

reasonable probability that counsel’s error prejudiced Jones.” Id. at 583. The

Seventh Circuit concluded that Jones’s trial counsel’s failure to object to the

amendment “doomed his appeal” because the Jones I court found that the

amendment was made in violation of Section 35-34-1-5, and “what killed the

argument in that court was waiver, not lack of merit.” Id. at 583.

5 We note that the Fajardo court cited Haak when explaining the statutory language of Section 35-34-1-5. See Fajardo, 859 N.E2d at 1205 (citing Haak, 695 N.E.2d at 951). And the Fajardo court cited Haak when it stated, “as to an amendment relating to matters of substance, the statute is clear: the only prerequisite is that it must be filed the specified number of days before the omnibus date, pursuant to subsection 5(b).” Id. at 1207 (emphasis added) (citing Haak, 695 N.E.2d at 951).

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 20 of 37 [29] The State does not acknowledge Haak or Jones III or respond to Absher’s

argument based on these cases. Although Jones III is not binding, we find it

persuasive to the resolution of this case because of its striking similarity to the

facts and procedural history of this case. In both cases, the defendant’s trial

counsel did not object to the State’s motion to amend, and on direct appeal, the

defendant’s appellate counsel challenged the trial court’s ruling to grant the

State’s motion. The direct appeals court in both cases concluded that the

amendment at issue was one of substance that violated Section 35-34-1-5(b),

and that the trial court erred by granting the amendment. In both cases, the

appellate court did not reverse the conviction because the error had not been

preserved for appellate review due to trial counsel’s failure to lodge an

appropriate objection.

[30] We conclude that based on the clear language of Section 35-34-1-5 and our

supreme court’s decision in Haak, Absher’s trial counsel had a firm basis to

object to the prosecutor’s amendment to add two new counts and that he

performed deficiently by failing to object to the amendment as one of substance

that was untimely pursuant to Section 35-34-1-5. We further conclude that

there is a reasonable probability that, but for trial counsel’s deficient

performance, the result of the proceeding would have been different. 6

6 The post-conviction court found that “Absher was unable to explain to the Court how the late amendment was fundamentally unfair” and “failed to show the Court how the performance of trial counsel in failing to object to the late amendment prejudiced his substantial rights.” Appealed Order at 4. This was not the proper standard to determine whether Absher was prejudiced by his trial counsel’s deficient performance.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 21 of 37 Middleton, 72 N.E.3d at 891-92. Specifically, but for Absher’s trial counsel’s

failure to object, the Absher I court would have vacated the convictions for the

counts added by the amendment just as our supreme court did in Fajardo.

Accordingly, we find both deficient performance and prejudice.

[31] In reaching this conclusion, we recognize that this case will likely be an outlier.

Our legislature amended Section 35-34-1-5 four months after Fajardo, such that

amendments of substance are permitted any time before trial so long as the

defendant’s substantial rights are not prejudiced. Ind. Pub. Law 178-2007 § 1

(eff. May 8, 2007). Whether the amended statute had retroactive application

initially met with differing opinions from this Court, but a number of panels

have now concluded that retroactive application of the new version of the

statute does not violate the ex post facto provisions of the Indiana and United

States Constitutions. See Mays v. State, 120 N.E.3d 1070, 1080-81 & n.4 (Ind.

Ct. App. 2019) (Mays II) (citing cases that applied new version retroactively),

trans. denied; see also Baker v. State, 922 N.E.2d 723, 728 (Ind. Ct. App. 2010),

aff’d on reh’g 928 N.E.2d 890, trans. granted, vacated in part 948 N.E.2d 1169,

1173 (Ind. 2011) (summarily affirming retroactive application of Section 35-34-

1-5). In Mays II, another panel of this Court rejected Mays’s argument that his

appellate counsel was ineffective. 120 N.E.3d at 1083. There, on direct appeal,

Mays argued that the trial court erroneously granted the State’s motion to

amend the charging information, but his appellate counsel failed to provide an

adequate record to permit meaningful appellate review of the claim. Mays v.

State, No. 49A05-0609-CR-482, 2007 WL 2429254 (Ind. Ct. App. Aug. 29,

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 22 of 37 2007) (Mays I), trans. denied. The Mays II court agreed with Mays’s claim that

his appellate counsel performed deficiently by failing to provide an adequate

record. Mays II, 120 N.E.3d at 1080. However, the court concluded that Mays

was not prejudiced by his appellate counsel’s deficient performance because

when his direct appeal was decided, Section 35-34-1-5 had already been

amended, Fajardo was no longer good law, and the Mays I court would have

applied the new version of the statute had it addressed the issue on the merits.

Id.

[32] Absher’s case is distinguishable from Mays II. Mays’s direct appeal was decided

almost four months after the new version of the statute became effective, and

his claim was not addressed on the merits. In contrast, the Absher I court

addressed Absher’s claim on the merits, applying Fajardo and the prior version

of Section 35-34-1-5. The Absher I court held that the amendment was one of

substance that was prohibited pursuant to Section 35-34-1-5(b), and therefore

the trial court erroneously permitted the amendment. Due to the determination

of the issues in Absher’s direct appeal, we have no difficulty concluding that

Absher was prejudiced by trial counsel’s deficient performance. 7

7 We observe that the Mays II court discussed Jones III but did not find it persuasive because the Jones III court observed in a footnote that the new version of the statute did not have retroactive effect, which was “not consistent with our Court’s precedent.” 120 N.E.3d at 1083. The Mays II court determined that the new version would have been applied in Mays’s direct appeal if the appellate court had addressed the issue on the merits. Id. at 1082-83. While the retroactivity of the new version of the statute initially resulted in differing opinions from the Court of Appeals, it now appears that Jones III was mistaken on this point. Here, unlike in Mays II, the retroactivity of the new version of the statute is not at issue because the Absher I court has already held that the amendment violated Section 35-34-1-5 and the trial court erred in granting the motion to

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 23 of 37 [33] Finding both deficient performance and prejudice to Absher, we conclude that

Absher’s trial counsel provided ineffective assistance by failing to object to the

amendment to the charging information. Thus, the post-conviction court erred

by denying Absher relief on this claim. Accordingly, we reverse the judgment

on this claim and remand with instructions to vacate the convictions and

sentences for Counts 2 and 3.

Section 2 – Trial counsel did not provide ineffective assistance by failing to object to the prosecutor’s comments during closing argument. [34] Absher also asserts that his trial counsel provided ineffective assistance by

failing to object to comments made by the prosecutor during rebuttal closing

argument. Although we have concluded that Absher’s trial counsel provided

ineffective assistance by failing to object to the amended charging information,

the resolution of that issue does not affect Absher’s conviction on Count 1. As

such, Absher’s assertion that his trial counsel was ineffective by failing to object

to the prosecutor’s comments may have bearing on his claim for relief as to

Count 1, and therefore we will address it.

[35] The prosecutor’s rebuttal closing argument included the following comments:

Do you know this process is uh, is a strange process for most people. I deal with it everyday. But most people don’t. And I can remember in opening and voir dire[,] the defense talking about

amend. Thus, had Absher’s trial counsel objected to the motion to amend, Absher’s convictions, like Fajardo’s, would have been reversed.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 24 of 37 that, this is important to [Absher], this is important to him. I remember some of the potential jurors say[,] oh I want to make sure because I want to be fair to him. And this whole thing from May 27th through a time that this officer saw him[,] it has been about him[,] that’s the way the system is[,] that’s the way the process works. Guys want their rights when we want to talk to em[. W]e got to get a search warrant if we want to take evidence from him. We, we appoint them lawyers, their [sic] given the presumption of innocense [sic], there’s a burden of proof[,] and we got to prove beyond a reasonable doubt and you’re gonna be getting all those rules[,] but I love this moment right now. Because that cloak that has been covering him from [sic] two years is now stripped away[,] and we see him as he is. And I can come up here and tell you it. He’s a child molester. We see it. And all those protections that have followed him into that jury room will end when you see it also. I was thinking in trying the thing about what was my powerful piece of evidence. What witness was it, was it the police officer, the PhD., the forensic nurse, and I think back to a story. Jesus was with his disciples[,] and the disciples was asking him Jesus, who’s gonna be the greatest in heaven, who, who’s gonna be the one gonna be up there the greatest in heaven? One (inaudible) to kings. Jesus grabbed the hand of a little child put it in his own[. W]ell I think my best guess is the greatest witness that I (inaudible) is that of a child. Coz that took a lot of strength and courage. She’s a kid. And here these cases are very difficult for everybody including me. Because I have to take it’s not your normal witness. It’s not somebody I can prepare and tell em to watch out for this point, they’re kids. And maybe that’s why I get a little emotional about these kind of cases. … I don’t comprehend. And I say I don’t comprehend. I don’t comprehend. I can understand how a person can steal[.] I don’t condone it but I understand[.] I can understand how somebody can break into your house and take something, I can even understand how some people murder. But I can’t comprehend how you could do that to that little girl. I can’t comprehend it. I can’t today. And maybe sometimes I’ve gotten emotional[. S]ometimes I’ve said something maybe been a

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 25 of 37 little mean and out of touch that’s because I can’t comprehend how he could do this. And the laws in this country reflect that. And you know what now, I know it’s all about him[,] but I don’t care about him no more. It ain’t about him. It’s about that little [J.L.] That’s what it’s about. In that same passage Jesus was talking about whoa [sic] to you who would mistreat one of the little ones because if you do you would be better off tying a millstone around your neck and jumping into the depths of the sea. That’s what he said. We haven’t adopted that law in the State of Indiana yet. So I don’t feel bad about the passion that’s here. You have to, that’s what makes this crime so diabolical. They want to make their own rules. You get to molest kids[,] and if you don’t molest em hard enough than [sic] you get to argue[,] oh I only have this little bit of, oh it was just one millimeter. … Those puzzle pieces, they ain’t nothing but a ploy. That’s a game. I’m done with the game. Let’s talk about the truth. That somehow then because he’s such a large man[,] I almost got sick hearing that. That oh he would have caused so much more, it, it’s sick. … We are lucky today that we had the evidence to present to you. And it still ain’t good enough coz they want to make the rules.

Trial Tr. Vol. 2 at 402-05. The prosecutor continued,

In that same story about Jesus and the children he talks about kids and how we have to deal with em. And about we have to show deference, we must understand the little ones, we must bend down to listen to em we must care for those little ones. But he tells us the reason why I’m sure is because they have an angel (inaudible). That’s a good explanation of what happened here and why I believe that. I think we need a little help here on earth.

Id. at 408. Absher’s trial counsel did not object.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 26 of 37 [36] “In order to prove ineffective assistance of counsel due to the failure to object, a

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

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

(Ind. 2010). Absher maintains that an objection would have been sustained on

grounds that the remarks were calculated to inflame the passions of the jury,

improperly expressed the prosecutor’s personal beliefs about Absher’s guilt, and

vouched for J.L.’s credibility, and that the objectionable remarks prejudiced

him because they caused the jury to focus on improper emotional

considerations rather than the evidence. The State contends that trial counsel

reasonably and strategically chose not to object to the remarks and therefore did

not provide ineffective assistance. We agree with the State.

[37] As noted earlier, counsel’s strategic choices are accorded significant deference,

and there is a strong presumption that counsel’s strategic decisions were based

on counsel’s reasonable professional judgment. Ward, 969 N.E.2d at 51;

Weisheit, 109 N.E.3d at 983. Here, Absher’s trial counsel testified at the PCR

hearing that he made decisions on whether to object on “a case by case basis[,]”

and that he remembered that the “jury just absolutely hated our side of the

room at that point[,]” and that objecting to biblical references before a Floyd

County jury would not “score any points” and would have “done more harm

than good.” PCR Tr. Vol. 2 at 28. Absher’s trial counsel was familiar with

Floyd County juries because he practiced in Floyd County and worked as a

public defender from 1997 to 2010. Id. at 23-27. Accordingly, we conclude that

Absher has failed to overcome the strong presumption that his trial counsel’s

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 27 of 37 decision not to object was based on counsel’s reasonable professional judgment.

We conclude that Absher’s trial counsel did not provide ineffective assistance

by failing to object to the prosecutor’s closing argument. Therefore, the post-

conviction court did not err by denying relief on this claim.

Section 3 – Appellate counsel provided ineffective assistance by failing to raise the issue of insufficient evidence. [38] Absher claims that his appellate counsel provided ineffective assistance by

failing to argue on direct appeal that the evidence was insufficient to support

Count 2. We observe that our resolution in Section 1 results in remand with

instructions to vacate the convictions and sentences for Counts 2 and 3.

Because this claim provides a significant independent basis for vacating the

conviction and sentence for Count 2, we choose to address it. 8

[39] “The standard for gauging appellate counsel’s performance is the same as that

for trial counsel.” Weisheit, 109 N.E.3d at 992. The petitioner must show that

counsel’s performance was deficient in that counsel’s representation fell below

an objective standard of reasonableness and that but for appellate counsel’s

deficient performance, there is a reasonable probability that the result of the

appeal would have been different. Overstreet v. State, 877 N.E.2d 144, 165 (Ind.

2007). Generally, claims of ineffective assistance of appellate counsel fall into

8 The post-conviction court did not specifically address this claim. Instead, the post-conviction court found, “no merit to Absher’s fourth assertion that appellate counsel failed to argue insufficiency of the evidence on Count II as a reason not to support consecutive sentences.” Appealed Order at 7. That was not Absher’s claim.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 28 of 37 three basic categories: “(1) counsel’s actions denied the defendant access to

appeal; (2) counsel failed to raise issues on direct appeal resulting in waiver of

those issues; and (3) counsel failed to present issues well.” Massey v. State, 955

N.E.2d 247, 258 (Ind. Ct. App. 2011). Here, Absher’s claim falls within the

second category.

To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are clearly stronger than the raised issues. If the analysis under this test demonstrates deficient performance, then we examine whether the issues which ... appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial. Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal. One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.

Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006) (citations and quotation marks

omitted). Appellate courts should be deferential to an appellate counsel’s

strategic decision to include or exclude issues, “unless such a decision was

unquestionably unreasonable.” Stevens v. State, 770 N.E.2d 739, 760 (Ind. 2002)

(quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)). We will defer to

appellate counsel’s decision to exclude an issue unless a defendant shows “from

the information available in the trial record or otherwise known to appellate

counsel that appellate counsel failed to present a significant and obvious issue

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 29 of 37 and that this failure cannot be explained by any reasonable strategy.” Id.

(quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000)).

[40] To resolve Absher’s claim, we must decide whether he has demonstrated that

appellate counsel’s failure to raise the issue of insufficient evidence to support

Count 2 was “unquestionably unreasonable” in light of the facts of the case and

the precedent available when the decision not to raise the issue was made.

Concepcion v. State, 796 N.E.2d 1256, 1259 (Ind. Ct. App. 2003), trans. denied.

Put another way, has Absher established that his appellate counsel’s

performance was deficient because counsel failed to present a significant and

obvious issue for reasons that cannot be explained by any strategic decision?

Imel v. State, 830 N.E.2d 913, 917-18 (Ind. Ct. App. 2005), trans. denied.

[41] We first address whether a claim of the insufficiency of the evidence supporting

Count 2 was significant and obvious from the face of the record. In reviewing a

claim of insufficient evidence, we do not reweigh the evidence or judge the

credibility of witnesses, and we consider only the evidence that supports the

judgment and the reasonable inferences arising therefrom. Bailey v. State, 907

N.E.2d 1003, 1005 (Ind. 2009). The evidence is sufficient where “there is

substantial evidence of probative value such that a reasonable trier of fact could

have concluded the defendant was guilty beyond a reasonable doubt.” Id. A

conviction “may not be based upon guess or speculation.” Smith v. State, 256

Ind. 546, 551, 270 N.E.2d 743, 745 (1971).

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 30 of 37 [42] To establish that Absher committed class A felony child molesting as charged in

Count 2, the State was required to prove beyond a reasonable doubt that he, a

person at least twenty-one years of age, performed deviate sexual conduct with

J.L., a child under the age of fourteen, by placing his mouth on her sex organ.

Direct Appeal App. Vol. 1 at 114; Ind. Code § 35-42-4-3. At trial, the State’s

witnesses included J.L., Rawlings, Sergeant Knight, and nurse Scifres. Our

review of the record shows that J.L. did not testify that Absher touched her

private area with his mouth, nor did she tell Rawlings, Sergeant Knight, or

nurse Scifres that he did. In fact, when Sergeant Knight asked J.L. during her

interview whether any part of Absher’s body other than his penis touched her

private area, she said no. Trial Conf. Ex. Vol. 1 at 52. Rawlings did not testify

at trial or in her deposition that Absher placed his mouth on J.L.’s vagina.

[43] The State argues that the evidence presented by the State’s forensic expert Dr.

Michael J. Spence was sufficient evidence for a reasonable trier of fact to

conclude that Absher placed his mouth on J.L.’s sex organ, citing to Dr.

Spence’s testimony on pages 155-56 and 170 in the trial transcript. This

evidence was the only evidence cited during the State’s closing argument in

support of Count 2. The State directs us to Dr. Spence’s testimony that amylase

and Absher’s DNA were found on the inside of J.L.’s underwear, and that

amylase is an enzyme that is found in saliva. 9 Trial Tr. Vol. 1 at 155-56, 159-

9 Dr. Spence testified that tests for the presence of blood and seminal fluid on J.L.s’ underwear were negative. Trial Tr. Vol. 1 at 157.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 31 of 37 60. The State also notes that Dr. Spence testified that J.L.’s external genital

swabs testified positive for some amylase. Id. at 159.

[44] The State ignores the greater part and significance of Dr. Spence’s testimony.

Dr. Spence testified that the amount of amylase from the external genital swabs

was “not extremely high but it’s at least an indication that there is some

amylase there.” Id. at 159-160. He explained that the amylase “may or may

not be related to saliva … it might just be from sweat. Skin cells might have a

little bit … vaginal secretions might have a little bit of amylase as well.” Id. at

160; see also id. at 156 (Dr. Spence testifying that “[s]ometimes other body fluids

have a little bit of amylase in them, sweat, vaginal secretions, and so forth.”).

We also note that although the external genital swabs were sent for DNA

testing, no DNA profile was obtained from those swabs. Id. at 171.

[45] Additionally, Dr. Spence specifically testified that there was “some amylase”

detected on two cuttings of J.L.’s underwear, which he said indicated that the

cuttings came from regions of the underwear that would be good areas to test

for DNA. Id. at 160, 162. Two additional cuttings were taken from those two

areas of J.L.’s underwear and were submitted for DNA testing. Dr. Spence

testified that the DNA testing of those two samples showed a mixture of DNA

from which neither J.L. nor Absher could be excluded as the source. Id. at 167-

68. Dr. Spence testified that there were alleles in the DNA profile that matched

Absher’s DNA profile, but he cautioned, “Now this is not an identity match.”

Id. When the prosecutor asked Dr. Spence whether it was correct that the

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 32 of 37 mixture of DNA consistent with Absher’s and J.L.’s was found in the same

region of J.L.’s underwear where amylase was found, Dr. Spence responded,

Yes, and you have to tread carefully because we can be absolutely certain that the amylase positivity which is an indication of saliva, it’s not a proof of saliva but it’s an indication of it. You can’t, you can’t make the leap and say that that means that the DNA came from saliva. Just means that the two areas are consistent with other. From an area where I saw potential saliva I saw a DNA profile it looks to be, it could be [J.L.’s]. No surprise that’s her underpants. But the additional alleles could have come from the amylase we detected or could come from other sources. We just know it’s foreign to her.

Id. at 170 (emphases added).

[46] The State asserts that

it does not matter if amylase can be present in other bodily fluids. What matters is that the presence of amylase is evidence of saliva, and by logical extension that it was evidence that [Absher’s] mouth came into contact with the victim’s vaginal region, resulting in the presence of amylase both from the swabs of the vagina and inside the victim’s underwear.

Appellee’s Br. at 29. Given Dr. Spence’s unequivocal testimony that the DNA

tests and the amylase tests do not mean that the DNA found in the underwear

came from saliva, we cannot agree that there is any probative evidence that

Absher’s saliva was found on J.L.’s underwear. At best, Dr. Spence’s evidence

shows that it was merely within the realm of possibility that the amylase found

on J.L.’s underwear could have come from saliva, and if there was saliva it

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 33 of 37 could have come from Absher. According to Dr. Spence, one cannot make the

leap to conclude that the amylase came from Absher’s saliva. In addition to the

lack of probative evidence that Absher’s mouth touched J.L.’s sex organ, we

further note that defense counsel moved for a directed verdict and argued to the

jury that the State failed to present sufficient evidence on Count 2. We

conclude that a claim of the insufficiency of the evidence supporting Count 2

was significant and obvious from the face of the record.

[47] We now address whether the unraised claim was clearly stronger than the issue

raised by Absher’s appellate counsel. On direct appeal, his appellate counsel

raised one claim, that the trial court erred in granting the State’s motion to

amend the charging information. Although Fajardo provided a firm foundation

for that claim, Absher’s trial counsel had failed to preserve the error for

appellate review. “The absence of an objection at trial is a proper factor in

appellate counsel’s decision whether or not to raise an issue.” Harrison v. State,

707 N.E.2d 767, 787 (Ind. 1999), cert. denied (2000). Absher’s trial counsel’s

failure to preserve the issue significantly affected the strength of the claim

because as a result, his appellate counsel was required to demonstrate

fundamental error, which provides an exceptionally limited avenue of relief.

See Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008) (“[F]undamental error is

extremely narrow and available only when the record reveals a clearly blatant

violation of basic and elementary principles, where the harm or potential for

harm cannot be denied, and which violation is so prejudicial to the

[defendant’s] rights as to make a fair trial impossible.”). Therefore, we

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 34 of 37 conclude that a claim that the evidence was insufficient to support Count 2 was

clearly stronger than the claim raised. Because the insufficiency of the evidence

claim was significant and obvious from the face of the record and clearly

stronger than the issue raised, appellate counsel’s failure to raise it cannot be

explained by strategic choice, and therefore we conclude that Absher’s appellate

counsel provided deficient performance.

[48] Finally, we consider prejudice, that is, whether the claim of insufficiency of the

evidence to support Count 2 would have been clearly more likely to result in

reversal or a new trial. “While we seldom reverse for insufficient evidence, in

every case where that issue is raised on appeal we have an affirmative duty to

make certain that the proof at trial was, in fact, sufficient to support the

judgment beyond a reasonable doubt.” Bean v. State, 818 N.E.2d 148, 150 (Ind.

Ct. App. 2004). For the same reason that we conclude that the insufficiency of

the evidence supporting Count 2 was significant and obvious from the face of

the record, we conclude that this issue was clearly more likely to result in

reversal. We need not repeat that analysis in detail. In brief summary, there

was no witness testimony or direct evidence that Absher placed his mouth on

J.L.’s sex organ, J.L. denied that any part of Absher’s body other than his penis

touched her sex organ, and Dr. Spence testified that one cannot conclude that

the DNA found in the underwear cuttings came from saliva. Given the paucity

of probative evidence, it is clearly more likely that the court on direct appeal

would have concluded that the evidence was insufficient to support Count 2

and would have reversed Absher’s conviction on that count. See Cockrell v.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 35 of 37 State, 743 N.E.2d 799, 803 (Ind. Ct. App. 2001) (“When a conviction is

reversed due to insufficient evidence, double jeopardy precludes retrial of the

overturned conviction.”). Given that we have concluded that Absher’s

appellate counsel performed deficiently and that his performance was

prejudicial, appellate counsel provided ineffective assistance of counsel.

Therefore, the post-conviction court erred by denying Absher post-conviction

relief on this claim.

Conclusion [49] We conclude that the post-conviction court erred by denying Absher relief on

his claim that his trial counsel provided ineffective assistance by failing to object

to the charging amendment, and therefore we reverse judgment on this claim

and remand with instructions to vacate the convictions and sentences for

Counts 2 and 3. On the other hand, we find no error in the post-conviction

court’s rejection of Absher’s claim that his trial counsel provided ineffective

assistance by failing to object to the prosecutor’s comments during closing

argument and therefore affirm on this claim.

[50] In addition, we conclude that the post-conviction court erred by denying relief

on Absher’s claim that his appellate counsel provided ineffective assistance by

failing to raise the sufficiency of the evidence to support Count 2, and therefore

we reverse the judgment on this claim. We note that our resolution of this issue

provides an additional ground for Absher’s conviction and sentence for Count 2

to be vacated. Based on the foregoing, we affirm in part, reverse in part, and

remand with instructions. Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 36 of 37 [51] Affirmed in part, reversed in part, and remanded.

Najam, J., and Riley, J., concur.

Court of Appeals of Indiana | Opinion 20A-PC-1227 | January 22, 2021 Page 37 of 37