Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Kenny Green

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan M. Comer

Angela Sanchez

Caroline G. Templeton

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kenny Green,

Appellant-Petitioner,

v.

State of Indiana

Appellee-Respondent.

May 8, 2020

Court of Appeals Case No.

49A02-1702-PC-494

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

The Honorable Jeffrey L. Marchal, 

Magistrate

Trial Court Cause No.

49G06-1010-PC-80292

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1702-494 | May 8, 2020 Page 2 of 12

[1] Kenny Green (“Green”) is serving an aggregate forty-year sentence for his Class 

A felony rape and Class D felony auto theft convictions. The Marion Superior 

Court denied Kenny Green’s pro se petition for post-conviction relief of his rape 

conviction. Green appeals and argues that he received ineffective assistance of 

counsel at trial.

[2] We affirm.

Facts and Procedural History

[3] In 2011, Green was convicted of Class A felony rape and Class D felony auto 

theft. Green appealed his convictions and sentence, and the facts surrounding 

his offenses were discussed in his direct appeal:

On May 18, 2009, P.E. met Green outside her apartment door 

and invited him inside because she was new to the apartment 

complex and wanted to meet other residents. P.E. had two other 

friends with her, and she and Green eventually drove P.E.’s 

friends to a nearby club. After P.E. and Green returned to P.E.’s 

apartment, they smoked crack cocaine. Green then left P.E.’s 

apartment but told her that he would be back.

Hours later, Green returned and asked P.E. if he could use her 

phone. As P.E. began to retrieve her phone from her purse, 

Green came up behind her and began to strangle her with a belt 

from her robe. After he threatened to cut her, Green forced P.E. 

to perform oral sex on him. Green then gagged P.E. with an 

electrical cord, pulled off her clothing, and raped her.

After raping P.E., Green took her car keys and cell phone from 

her purse. Green left P.E.'s apartment, and P.E. put on clothing 

and chased after him, but once outside, she saw Green driving 
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away in her car. P.E. then called 911 to report the rape and auto 

theft. P.E. told the responding officer that a man named K.G. 

had raped her and stolen her car. The officer observed that P.E. 

had red marks on the outside of her lips that extended down to 

her chin, red marks on her neck, an abrasion on her elbow, and 

bruising on her arms. 

The officer sent P.E. to Methodist Hospital for a sexual assault 

examination. The forensic nurse examiner also observed the red 

marks near P.E.'s mouth, chin and neck, which she concluded 

were consistent with “marks made by strangulation by ligature.” 

The nurse examiner also observed injuries and abrasions to 

P.E.’s vagina, which were consistent with “blunt force trauma” 

and in the area of the vagina that is typically injured during a 

sexual assault.

On October 19, 2010, Green was charged with Class A felony 

rape, Class A felony criminal deviate conduct, Class B felony 

robbery, Class D felony strangulation, Class D felony criminal 

confinement, and Class D felony auto theft. After a two-day jury 

trial, Green was found guilty of rape, strangulation, criminal 

confinement, and auto theft, but was acquitted of criminal 

deviate conduct and robbery.

Green’s sentencing hearing was held on June 16, 2011. Although 

Green’s counsel did not argue for any mitigating circumstances, 

the trial court considered Green’s substance abuse as a mitigating 

factor. But the trial court determined that Green’s criminal 

history, consisting of several misdemeanor and felony 

convictions as well as probation revocations, outweighed that 

mitigating circumstance. The court then ordered Green to serve 

concurrent sentences of forty years for Class A felony rape and 

three years for Class D felony auto theft. The trial court declined 

to enter judgment on the strangulation and criminal confinement 

counts due to double jeopardy concerns. Green was also ordered 
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to register as a sex offender and found to be a sexually violent 

predator. 

Green v. State, 49A02-1107-CR-611, 2012 WL 986646 at *1 (Ind. Ct. App. Mar. 

22, 2012) (record citations omitted), trans. denied.

[4] In 2012, Green filed a pro se petition for post-conviction relief, and he filed an 

amended petition in 2014. In his amended petition, he challenged the 

effectiveness of both his trial and appellate counsel. Bifurcated hearings were 

held on Green’s petition on November 19, 2015, and February 4, 2016. During 

the hearings, Green elicited testimony from his trial counsel concerning the 

victim’s inconsistent statements prior to trial and counsel’s advice regarding a 

guilty plea offer. The trial court concluded that Green’s trial counsel and 

appellate counsel were not ineffective and issued an order denying Green’s 

petition for post-conviction relief on January 24, 2017. 1 Green now appeals pro 

se challenging only the trial court’s conclusion that his trial counsel was not 

ineffective.

Standard of Review

[5] Our standard of review for claims of post-conviction court error is well settled:

1 Green’s appeal was initially dismissed by our court on October 4, 2017, because the transcript of the postconviction hearing had not been filed, and Green had not filed a motion to compel the issuance of the Notice 

of Completion of Transcript within the time limits established by our appellate rules. One year later, our 

supreme court allowed Green to belatedly file a petition to transfer. On November 13, 2018, the court 

granted Green’s petition to transfer. In its order, the supreme court remanded Green’s appeal to our court 

with instructions to vacate our order of dismissal and to establish a briefing schedule for review of the appeal 

on its merits.
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A post-conviction petitioner bears the burden of establishing 

grounds for relief by a preponderance of the evidence. On appeal 

from the denial of post-conviction relief, the petitioner stands in 

the position of one appealing from a negative judgment. To 

prevail on appeal from the denial of post-conviction relief, the 

petitioner must show that the evidence as a whole leads 

unerringly and unmistakably to a conclusion opposite that 

reached by the post-conviction court.

Where, as here, the post-conviction court makes findings of fact 

and conclusions of law in accordance with Indiana PostConviction Rule 1(6), we cannot affirm the judgment on any 

legal basis, but rather, must determine if the court’s findings are 

sufficient to support its judgment. Although we do not defer to 

the post-conviction court’s legal conclusions, we review the postconviction court’s factual findings under a clearly erroneous 

standard. Accordingly, we will not reweigh the evidence or judge 

the credibility of witnesses, and we will consider only the 

probative evidence and reasonable inferences flowing therefrom 

that support the post-conviction court’s decision.

Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (citations omitted) 

trans. denied.

Discussion and Decision

[6] “The criminal defendant’s right to counsel is foundational to our criminal 

justice system, giving it legitimacy and fairness.” Bobadilla v. State, 117 N.E.3d 

1272, 1279 (Ind. 2019). “The Sixth Amendment to the United States 

Constitution guarantees criminal defendants the right to counsel and mandates 

‘that ‘the right to counsel is the right to the effective assistance of counsel.’’” Id.
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(quoting Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. 

Richardson, 397 U.S. 759, 771 n.14 (1970)).

[7] A claim of ineffective assistance of trial counsel requires a showing that: (1) 

Green’s trial counsel’s performance was deficient by falling below an objective 

standard of reasonableness; and (2) that the deficient performance prejudiced 

Green such that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

See Strickland, 466 U.S. at 694. Failure to satisfy either of the two elements will 

cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). It is 

well-settled that “[i]solated mistakes, poor strategy, or bad tactics do not 

necessarily amount to ineffective assistance of counsel.” Herrera v. State, 679 

N.E.2d 1322, 1326 (Ind. 1997) (citations omitted).

[8] If it is easier to dispose of an ineffectiveness claim on the lack of prejudice, then 

this is the course we should follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. 

Ct. App. 2011); Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). 

Prejudice occurs when a reasonable probability exists that, but for counsel’s 

errors, the result of the proceeding would have been different. Passwater v. State, 

989 N.E.2d 766, 770 (Ind. 2013).

[9] Green raises several challenges to his trial counsel’s effectiveness. The 

fundamental issue during Green’s trial was whether the victim consented to 

sexual intercourse with Green. The bulk of Green’s arguments concerning his 
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trial counsel’s ineffectiveness revolve around counsel’s unsuccessful attempts to 

undermine the victim’s credibility. 

[10] First, we address Green’s argument that his trial counsel was ineffective for 

failing to impeach the victim with her prior inconsistent statements. Trial 

counsel was aware of the victim’s prior inconsistent statements, and during 

cross-examination, counsel questioned her about inconsistent statements she 

made to law enforcement. See Trial Tr. Vol. 1 pp. 192–207. During closing 

arguments, Green’s trial counsel relied on the victim’s inconsistent statements 

to attack her credibility in his defense of Green. Trial Tr. Vol. 2, pp. 301–05. 

[11] But trial counsel did not question the victim about inconsistencies between a 

pre-trial audiotaped statement and her trial testimony. These prior inconsistent 

statements that Green specifically addresses in his brief are minor, such as the 

victim’s confusion of the precise date of the offense.

[12] Despite his efforts to impeach the victim, trial counsel found her testimony 

credible. P-C.R. Tr. pp. 28–29. Importantly, her trial testimony was 

corroborated by physical evidence found at the scene, by evidence of injuries 

suffered that were consistent with her version of the offense, and by the forensic 

nurse examiner’s testimony. 

[13] Green also claims that trial counsel should have impeached the victim with a 

prior rape allegation she made against another individual. The State filed a 

motion in limine concerning the prior rape allegation. Trial counsel did not 

object to the motion because there was no proper basis for doing so. Evidence 
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concerning prior rape allegations is prohibited by Evidence Rule 412 and 

Indiana Code section 35-37-4-4. Green asserts that the prior rape allegation was 

false, but there is no evidence to support that claim.2 The allegation did not 

result in criminal charges against the accused, but that does not affirmatively 

establish that the victim made a false accusation. Therefore, counsel was not 

ineffective for failing to impeach the victim with the prior rape allegation.

[14] “The method of impeaching witnesses is a tactical decision and a matter of trial 

strategy that does not amount to ineffective assistance.” Kubsch v. State, 934 

N.E.2d 1138, 1151 (Ind. 2010); see also McCary v. State, 761 N.E.2d 389, 392 

(Ind. 2002) (quotation and citation omitted) (“Few points of law are as clearly 

established as the principle that tactical or strategic decisions will not support a 

claim of ineffective assistance.”). Trial counsel attempted to impeach the victim 

and cast doubt on her credibility by questioning her about her prior inconsistent 

statements. Counsel did not question the victim about each prior inconsistent 

statement known to counsel. It was within counsel’s discretion to consider the 

effect of putting each minor prior inconsistent statement before the jury, 

especially given the strength of the evidence that corroborated the victim’s 

account of the rape.

2 A prior accusation of rape is admissible if (1) the victim has admitted that her prior accusation of rape is 

false; or (2) the victim’s prior accusation is demonstrably false. Graham v. State, 736 N.E.2d 822, 825 (Ind. Ct. 

App. 2000), trans. denied. “Prior accusations are demonstrably false where the victim has admitted the falsity 

of the charges or they have been disproved.” Candler v. State, 837 N.E.2d 1100, 1103 (Ind. Ct. App. 2005).
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[15] For all of these reasons, Green has not established that he was prejudiced by 

trial counsel’s failure to impeach the victim with her prior inconsistent 

statements or her prior rape allegation.

[16] Next, Green argues that his trial counsel was ineffective for failing to 

communicate and consult with him. He complains that trial counsel only 

visited with him twice for less than forty minutes before his jury trial began, and 

that counsel failed to investigate impeachment evidence. Green claims that if 

trial counsel had spent more time communicating with him, counsel would 

have had a better understanding of Green’s version of the events and had more 

evidence to impeach the victim’s credibility. Appellant’s Br. at 20.

[17] Specifically, Green contends counsel should have consulted with him on his 

claim that the victim lied when she testified that she did not buy the cocaine 

that she and Green smoked together. He asserts that if counsel had spent more 

time communicating with him prior to trial, they could have discussed and 

investigated evidence that would have undermined the victim’s credibility, such 

as obtaining the surveillance video from the bank machine where the victim 

withdrew money on the night of the offense. 

[18] There is no evidence to support Green’s claim that trial counsel failed to 

adequately communicate with him, but even if there was, Green has not 

established that the outcome of his trial would have been different if the jury 

had heard evidence that the victim lied about purchasing the cocaine. The 
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victim admitted that she and Green smoked cocaine together before Green 

returned to her apartment and raped her. 

[19] At the post-conviction hearing, trial counsel testified that he recalled meeting 

with Green to discuss the case and potential defenses, and he either played the 

victim’s audiotaped statement for Green or discussed the statement with him. 

P-C.-R. Tr. pp. 25–26. Green’s claim that if counsel had spent more time 

consulting with him there would have been “more evidence to impeach” the 

victim is not supported by any evidence. See Appellant’s Br. at 20. For all of 

these reasons, Green has not established that his trial counsel was ineffective for 

failing to adequately communicate and consult with him.

[20] Third, Green argues that his trial counsel was ineffective for failing to provide 

him with copies of discovery prior to trial, including police reports, pictures and 

depositions. Trial counsel believed that Green had been provided discovery in 

the case by his first public defender. At the PCR hearing, counsel also testified 

that he generally did not provide defendants with discovery so that other 

inmates at the jail would not have access to the documents. P-C.R. Tr. pp. 8–9. 

Trial counsel stated that he did not recall Green requesting discovery from him, 

but that he would have provided copies of the documents if asked. Id. Even 

assuming Green requested discovery he did not receive, Green has not argued 

how counsel’s failure to provide discovery affected the outcome of his trial. 

Therefore, Green has not established that he was prejudiced because trial 

counsel did not provide him with copies of discovery. 
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[21] Fourth, Green contends that his trial counsel misadvised him during plea 

negotiations. Shortly before Green’s trial began, the State offered Green a plea 

agreement whereby Green would plead guilty to Class D felony sexual battery 

and Class D felony auto theft with concurrent sentences of three years for each 

conviction. The trial court advised Green that if he accepted the State’s offer, he 

would have 328 days remaining to serve in jail. The trial court asked if Green 

would like to consult with his trial counsel, and Green stated he did not need 

additional time and rejected the State’s offer. Trial Tr. pp. 350–51.

[22] Green has not established that he received faulty advice during the plea 

negotiations. Green argues that he took counsel’s advice and rejected the plea 

offer and he references counsel’s “erroneous” advice. Appellant’s Br. at 25. But 

he has not offered any evidence establishing what counsel’s advice was aside 

from his own self-serving testimony at the post-conviction hearing, which the 

post-conviction court found was not credible. Appellant’s App. p. 20. And he 

rejected the State’s final plea offer after stating that he did not need to consult 

with his counsel. Trial Tr. pp. 350–51. For these reasons, we conclude that 

Green’s trial counsel was not ineffective for advising Green during plea 

negotiations with the State.

[23] Finally, Green claims that trial counsel’s cumulative errors prejudiced him and 

subjected him to ineffective assistance of trial counsel. Green has not 

established that his trial counsel was ineffective, and therefore, he has not 

established that he is entitled to relief based on the cumulative effect of trial 

counsel’s alleged errors.
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Conclusion

[24] Green has not established that he received ineffective assistance of counsel at 

trial. We therefore affirm the trial court’s order denying his petition for postconviction relief.

[25] Affirmed. 

Kirsch, J., and Bailey, J., concur.