MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 27 2017, 5:50 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Eric Koselke Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey Baber, March 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1607-CR-1585 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff Judge Trial Court Cause No. 49G03-0501-PC-8748
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 1 of 8 [1] Jeffrey Baber appeals from the denial of his petition for post-conviction relief
(PCR Petition). He asserts that the post-conviction court erred in rejecting his
claim of ineffective assistance of trial counsel.
[2] We affirm.
Facts & Procedural History
[3] On January 21, 2005, the State charged Baber with two counts of Class A
felony child molesting (Counts I and II) and two counts of Class C felony child
molesting (Counts III and IV). Following a jury trial in May 2006, Baber was
found guilty of Counts II, III, and IV and not guilty of Count I. The trial court
entered judgments of conviction on Counts II and III and sentenced Baber, on
July 12, 2006, to an aggregate term of thirty years in prison.
[4] The facts underlying Baber’s convictions were set out by this court on direct
appeal as follows:
Baber taught kindergarten and first grade. K.J. was a student in his first grade class. On January 18, 2005, while K.J. was coloring a banner in the classroom, Baber put his hand down the back of her pants and “put his finger in [her] butt hole.” K.J. stated Baber had done the same thing several times during the school year; however, because “it hurt the worst that time,” K.J. told her mother about the incident after school that day. She described how, prior to January 18, while the rest of the children were watching a movie, Baber had her grade papers with him in the back of the room and put his hand into her pants.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 2 of 8 Baber v. State, 870 N.E.2d 486, 488 (Ind. Ct. App. 2007) (citations to record
omitted). Baber’s convictions and sentences were affirmed on direct appeal.
[5] Baber initiated post-conviction review in 2008 and amended his PCR Petition
in 2013. In his petition, Baber argued that he was denied the effective
assistance of counsel at trial. His argument centered on trial counsel’s failure to
cross examine witnesses about a pending civil suit K.J.’s family had brought
against Baber and the school corporation. He also alleged that counsel failed to
object to “false and misleading testimony” and “materially false statements”
made by the prosecutor. Appellant’s Appendix at 41. Specifically, Baber asserted
that counsel should have objected when K.J.’s mother testified that there was
no reason she would want Baber to be in trouble and when the prosecutor
guaranteed, during rebuttal closing argument, that K.J.’s parents did not want
the allegations of child molestation to be true. According to Baber, these
instances were objectionable as false and misleading due to the family’s interest
in the pending civil action.
[6] Baber’s trial counsel testified at the evidentiary hearing on April 2, 2015.
Counsel explained that he was fully aware of the civil action but believed it was
not in Baber’s best interest to “approach that area” in the criminal case. PCR
Transcript at 10. He noted that possible other victims had surfaced. Also, he
did not feel that the existence of the civil action amounted to evidence that
would impact the jury’s assessment of K.J.’s credibility, given her young age.
In sum, he testified, “I just didn’t think it was good strategy.” Id. at 14.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 3 of 8 [7] On June 16, 2016, the post-conviction court issued findings of fact and
conclusions of law denying post-conviction relief. Baber now appeals.
Additional facts will be provided below as needed.
Discussion & Decision
[8] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. Although we do not defer to a post-conviction
court’s legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[9] A petitioner will prevail on a claim of ineffective assistance of trial counsel only
upon a showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner.
Bethea, 983 N.E.2d at 1138. The petitioner must first demonstrate deficient
performance, which is “representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 4 of 8 the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.
State, 761 N.E.2d 389, 392 (Ind. 2002)). “We afford counsel considerable
discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render
representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012)
(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)). There is a strong
presumption that trial counsel rendered adequate service. Bethea, 983 N.E.2d at
1139.
[10] With regard to the prejudice element, the petitioner must establish “a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different.” Id. “A reasonable probability is one that is
sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). Further, because a petitioner must prove both deficient
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 27 2017, 5:50 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Eric Koselke Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey Baber, March 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1607-CR-1585 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff Judge Trial Court Cause No. 49G03-0501-PC-8748
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 1 of 8 [1] Jeffrey Baber appeals from the denial of his petition for post-conviction relief
(PCR Petition). He asserts that the post-conviction court erred in rejecting his
claim of ineffective assistance of trial counsel.
[2] We affirm.
Facts & Procedural History
[3] On January 21, 2005, the State charged Baber with two counts of Class A
felony child molesting (Counts I and II) and two counts of Class C felony child
molesting (Counts III and IV). Following a jury trial in May 2006, Baber was
found guilty of Counts II, III, and IV and not guilty of Count I. The trial court
entered judgments of conviction on Counts II and III and sentenced Baber, on
July 12, 2006, to an aggregate term of thirty years in prison.
[4] The facts underlying Baber’s convictions were set out by this court on direct
appeal as follows:
Baber taught kindergarten and first grade. K.J. was a student in his first grade class. On January 18, 2005, while K.J. was coloring a banner in the classroom, Baber put his hand down the back of her pants and “put his finger in [her] butt hole.” K.J. stated Baber had done the same thing several times during the school year; however, because “it hurt the worst that time,” K.J. told her mother about the incident after school that day. She described how, prior to January 18, while the rest of the children were watching a movie, Baber had her grade papers with him in the back of the room and put his hand into her pants.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 2 of 8 Baber v. State, 870 N.E.2d 486, 488 (Ind. Ct. App. 2007) (citations to record
omitted). Baber’s convictions and sentences were affirmed on direct appeal.
[5] Baber initiated post-conviction review in 2008 and amended his PCR Petition
in 2013. In his petition, Baber argued that he was denied the effective
assistance of counsel at trial. His argument centered on trial counsel’s failure to
cross examine witnesses about a pending civil suit K.J.’s family had brought
against Baber and the school corporation. He also alleged that counsel failed to
object to “false and misleading testimony” and “materially false statements”
made by the prosecutor. Appellant’s Appendix at 41. Specifically, Baber asserted
that counsel should have objected when K.J.’s mother testified that there was
no reason she would want Baber to be in trouble and when the prosecutor
guaranteed, during rebuttal closing argument, that K.J.’s parents did not want
the allegations of child molestation to be true. According to Baber, these
instances were objectionable as false and misleading due to the family’s interest
in the pending civil action.
[6] Baber’s trial counsel testified at the evidentiary hearing on April 2, 2015.
Counsel explained that he was fully aware of the civil action but believed it was
not in Baber’s best interest to “approach that area” in the criminal case. PCR
Transcript at 10. He noted that possible other victims had surfaced. Also, he
did not feel that the existence of the civil action amounted to evidence that
would impact the jury’s assessment of K.J.’s credibility, given her young age.
In sum, he testified, “I just didn’t think it was good strategy.” Id. at 14.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 3 of 8 [7] On June 16, 2016, the post-conviction court issued findings of fact and
conclusions of law denying post-conviction relief. Baber now appeals.
Additional facts will be provided below as needed.
Discussion & Decision
[8] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. Although we do not defer to a post-conviction
court’s legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[9] A petitioner will prevail on a claim of ineffective assistance of trial counsel only
upon a showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner.
Bethea, 983 N.E.2d at 1138. The petitioner must first demonstrate deficient
performance, which is “representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 4 of 8 the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.
State, 761 N.E.2d 389, 392 (Ind. 2002)). “We afford counsel considerable
discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render
representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012)
(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)). There is a strong
presumption that trial counsel rendered adequate service. Bethea, 983 N.E.2d at
1139.
[10] With regard to the prejudice element, the petitioner must establish “a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different.” Id. “A reasonable probability is one that is
sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). Further, because a petitioner must prove both deficient
performance and resulting prejudice, the failure to prove either defeats such a
claim. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001).
[11] On appeal, Baber argues that trial counsel was ineffective in two respects: (1)
failing to object to improper vouching statements/testimony and (2) failing to
cross examine K.J.’s mother regarding the family’s pending civil suit arising
from the same allegations as the criminal action. We will address each
argument in turn.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 5 of 8 [12] First, Baber asserts that counsel should have objected to testimony and
statements regarding the victim and her family having no reason to lie. In this
regard, he notes that the prosecutor asked K.J.’s mother at trial, “Is there any
particular reason why you would want Mr. Baber to be in trouble?” PCR
Exhibits at 728. She replied in the negative. Baber also directs us to statements
made by the prosecutor during closing argument guaranteeing that K.J.’s
parents did not want the allegations to be true and asking, “What motivation
does this little girl have to lie about this?” Id. at 1051.
[13] Baber acknowledges that the above statements/testimony did not constitute
“blatant[] vouching” but argues that they were “a sort of reverse-vouching.”
Appellant’s Brief at 12. Although Baber’s vouching argument appears dubious,
we need not reach the issue because he did not argue this ground below.
Rather, his argument to the post-conviction court – both in his PCR Petition
and his proposed findings and conclusions – was that counsel should have
objected on the ground that the statements and testimony were false and
misleading. His vouching claims are therefore waived. See Allen v. State, 749
N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-
conviction relief may not be raised for the first time on post-conviction
appeal.”).
[14] Turning to his second claim of ineffectiveness, Baber argues that counsel failed
to cross examine K.J.’s mother regarding the pending civil suit. He opines that
this information would have completely counteracted the “‘lack of motive to lie
testimony’, yet counsel left this arrow in his quiver.” Appellant’s Brief at 14.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 6 of 8 [15] Baber overstates the significance of this evidence and fails to establish a
reasonable probability that had counsel cross examined on this basis, the result
of his criminal trial would have been different. In other words, he has not
shown prejudice resulting from the alleged deficient performance.
[16] Prejudice aside, Barber’s trial counsel testified at the post-conviction hearing
that he made a strategic decision not to elicit information regarding the civil
suit. He did not believe such evidence would benefit the defense, and he opined
that it could actually open the door to information prejudicial to Baber.
Further, the record reveals that counsel vigorously cross examined K.J.’s
mother, as well as other witnesses, and attempted to impeach her on multiple
grounds.
[17] It is well established that “the method of impeaching witnesses is a tactical
decision and a matter of trial strategy that does not amount to ineffective
assistance.” Kubsch, 934 N.E.2d at 1151. See also Waldon v. State, 684 N.E.2d
206, 208 (Ind. Ct. App. 1997) (“the nature and extent of cross-examination is a
matter of strategy delegated to trial counsel”), trans. denied. The post-conviction
court determined that counsel’s strategy to avoid any reference to the civil suit
was reasonable under the circumstances and, therefore, did not constitute
deficient performance. See Perryman v. State, 13 N.E.3d 923, 931 (Ind. Ct. App.
2014) (“Reasonable strategy is not subject to judicial second guesses.”) (quoting
Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986)), trans. denied. Baber has failed to
establish clear error in this regard.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 7 of 8 [18] Judgment affirmed.
[19] Riley, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-CR-1585 | March 27, 2017 Page 8 of 8