Court of Appeals of Indiana | Memorandum Decision 19A-CR-3011 | September 22, 2020 Page 1 of 22

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.

ATTORNEY FOR APPELLANT

Ann M. Sutton

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Josiah Swinney

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anthony Hillman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 22, 2020

Court of Appeals Case No.

19A-CR-3011

Appeal from the Marion Superior 

Court

The Honorable Alicia Gooden, 

Judge

Trial Court Cause No.

49G21-1808-PC-26194

49G21-1605-F4-19249

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3011 | September 22, 2020 Page 2 of 22

Case Summary

[1] In this combined appeal pursuant to the Davis/Hatton procedure, Anthony 

Hillman appeals his conviction for unlawful possession of a firearm by a serious 

violent felon, a Level 4 felony, and the post-conviction court’s (“PC Court”) 

denial of his petition for post-conviction relief (“PCR”). We affirm.

Issues

[2] Hillman raises three issues, which we restate as:

I. Whether the trial court properly admitted evidence 

found in the vehicle pursuant to a search warrant.

II. Whether the evidence is sufficient to sustain 

Hillman’s conviction.

III. Whether Hillman was denied the effective assistance 

of trial counsel.

Facts

[3] On May 17, 2016, Officer Justin Gough with the Indianapolis Metropolitan 

Police Department (“IMPD”) was sitting on 37th Street at Orchard Avenue 

when he observed a red Alero driving northbound on Orchard Avenue. The 

Alero parked in front of a residence on the 3500 block of Orchard Avenue. 

Officer Gough drove southbound on Orchard Avenue and drove past the 

parked vehicle. Officer Gough saw a person he believed to be Hillman get out 

of the driver’s side of the vehicle. Officer Gough was familiar with Hillman 

through other community engagements. 
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[4] Officer Gough “circled around the block” by driving eastbound on 34th Street to 

Caroline Avenue, north on Caroline Avenue to 37th Street, west on 37th Street 

to Orchard Avenue, and south on Orchard Avenue. Direct Appeal Tr. Vol. II 

p. 49. The drive to turn around took Officer Gough “approximately two 

minutes.” Id. at 79. Officer Gough then parked in front of the Alero. 

[5] Officer Gough saw Hillman standing approximately ten feet from the rear of 

the Alero, which was still running. Hillman was wearing the same clothing and 

had the same long dreadlocks as the man that exited the vehicle a couple 

minutes earlier. Officer Gough called Hillman by name and asked if Hillman 

would “mind coming over and speaking with” Officer Gough. Id. at 162. 

Hillman answered, “Gough, . . . why are you always messing with me or what 

do you need” and started walking toward Officer Gough. Id. Another man 

was also nearby walking away, and when the man turned around, Officer 

Gough recognized the man as Billy Hawkins. Officer Gough was aware that 

Hawkins was wanted on an active arrest warrant, and Officer Gough placed 

Hawkins in handcuffs. 

[6] Officer Christopher Cooper and Sergeant Matthew Thomas then arrived on the 

scene to assist Officer Gough. Sergeant Thomas walked past the Alero, where 

he saw an “AR-15 style rifle” resting on both the front passenger floorboard and 

the front passenger seat. Id. at 92. Officer Cooper drafted a search warrant 

affidavit for the Alero. The search warrant affidavit, however, did not mention 

that the Alero and its occupants were out of Officer Gough’s sight for a couple 
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of minutes while he circled the block. The trial court granted a search warrant 

for the Alero.

[7] While waiting for the search warrant, a young woman approached Sergeant 

Thomas and asked if the vehicle could be released to her; Sergeant Thomas 

asked if the vehicle belonged to the woman, and she responded that it did not. 

Sergeant Thomas asked for the woman’s identification, and she refused to 

provide her identification and left.

[8] Inside the Alero, officers found the loaded rifle resting on the front passenger 

floorboard and the front passenger seat; a loaded Glock handgun underneath 

the driver’s seat; a ski mask on the front passenger seat; a Lacoste hat on the 

front passenger seat; another ski mask behind the driver’s seat; and body armor 

on the back seat. The rifle had a spent casing catcher that contained twentythree spent shell casings. Officer Gough previously saw Hillman wearing a 

Lacoste hat identical to the hat found in the Alero. DNA testing results 

indicated that “the major contributor of DNA recovered from . . . the ski mask 

recovered from the front passenger seat of the red Alero, matche[d] the DNA of 

Billy Hawkins.” Tr. Vol. II pp. 170-71.

[9] The State ultimately charged Hillman with: Count I, unlawful possession of a 

firearm by a serious violent felon, a Level 4 felony, for possessing the handgun; 

and Count II, unlawful possession of a firearm by a serious violent felon, a 

Level 4 felony, for possessing the rifle. In February 2017, Hillman filed a 

petition for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 
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2674 (1978). Hillman alleged that the search warrant affidavit contained 

“material omissions and misstatements” because the affidavit did not mention 

that the Alero was out of Officer Gough’s sight for a few minutes while he 

drove around the block. Appellant’s App. Vol. II p. 140. 

[10] Hillman also filed a motion to suppress evidence pursuant to the Fourth 

Amendment of the United States Constitution and Article 1, Section 11 of the 

Indiana Constitution. Hillman moved to suppress the evidence seized as a 

result of the search of the Alero and argued: (1) “[t]he affidavit submitted in 

support of the issuance of the search warrant would not constitute probable 

cause if the true facts were related to the neutral and detached issuing

magistrate”; and (2) “[t]he search and seizures were unreasonable under the 

Indiana Constitution.” Id. at 143. 

[11] After a hearing on March 21, 2017, the trial court denied the motion to 

suppress. The trial court agreed that the information regarding Officer Gough 

circling the block “should have been included in the affidavit, in order to 

illustrate a complete picture for the reviewing judicial Officer.” Id. at 222. The 

trial court, however, found that “there was sufficient information presented to 

the judicial officer to determine that probable cause existed.” Id. at 223. 

Moreover, the trial court found that, “[e]ven if this court found that Officer 

Cooper omitted facts with the ‘intent to make the affidavit misleading or with 

reckless disregard for whether it would be misleading’ the affidavit 

supplemented with the omitted information would still have been sufficient to 
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support a finding of probable cause.” Id. (quoting Ware v. State, 859 N.E.2d 708 

(Ind. Ct. App. 2007)).

[12] Hillman also filed a motion in limine to prohibit the State from mentioning, in 

part, “[a] desire to talk to Mr. Hillman about things going on in the 

neighborhood” and “[a] prior shooting in 34th Street.” Appellant’s App. Vol. 

III p. 8. The hearing on the motion in limine and the trial court’s order are not 

included in the record presented to us. According to the parties, however, the 

trial court ruled that the search warrant affidavit would not be admissible at 

trial. See Direct Appeal Tr. Vol. II p. 137.

[13] Hillman’s jury trial was held in August 2017, and Hillman was represented by 

Attorney David Hennessy. During Hillman’s cross-examination of Officer 

Cooper, Hillman questioned the officer regarding the search warrant affidavit, 

and the trial court found that Hillman had opened the door to limited 

questioning regarding the search warrant affidavit. On redirect examination, 

the State elicited the following testimony:

Q. Officer Cooper back on May l7th 2016, [ ] did you and Officer 

Gough intend to speak with two black males about recent violent 

crimes in the city?

A. Yes.

Q. Did you intend to speak to those two individuals [ ] about a 

shooting that just recently occurred in the area?

A. Yes.
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Id. at 157-58.

[14] The jury found Hillman not guilty of illegal possession of the handgun in Count 

I, but found Hillman guilty of illegal possession of the rifle in Count II. 

Hillman then waived his right to a jury trial for the second phase of the trial,

and the trial court found Hillman guilty of unlawful possession of a firearm by a 

serious violent felon, a Level 4 felony. The trial court sentenced Hillman to ten 

years with three years suspended; Hillman was ordered to serve four years of 

the executed portion in the Department of Correction followed by three years in 

community corrections.1

 

[15] Hillman initiated a direct appeal. Hillman then filed a verified motion for leave 

to file a Davis/Hatton petition.

2

 This Court granted Hillman’s motion in part as 

follows:

This Court dismisses this appeal without prejudice so that 

Appellant may pursue post-conviction relief before the trial court. 

If any part of the trial court’s forthcoming ruling on Appellant’s 

1 In October 2019, the trial court modified Hillman’s sentence to seven years of home detention.

2 Hillman used the Davis/Hatton procedure as outlined in Appellate Rule 37 to stay his direct appeal and 

pursue a petition for post-conviction relief in the trial court. See Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 

(1977); Hatton v. State, 626 N.E.2d 442 (Ind. 1993).

If, after a full evidentiary hearing, the postconviction relief petition is denied, the appeal can be 

reinstated. Thus, in addition to the issues initially raised in the appeal, the issues litigated in the 

postconviction relief proceeding . . . can also be raised. In this way, even if the trial court denies 

the postconviction claim . . . , a full hearing and record on the issue will be included in the 

appeal.

Schlabach v. State, 842 N.E.2d 411, 415 (Ind. Ct. App. 2006), trans. denied. “Once the petition for 

postconviction relief is denied after a hearing, and the direct appeal is reinstated, the direct appeal and the 

appeal of the denial of postconviction relief are consolidated.” Id. at 415-16.
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petition for post-conviction relief is adverse to Appellant, 

Appellant may, after filing a new notice of appeal, raise the issues 

he would have raised in this appeal along with the new issues 

created by the trial court’s ruling on the petition for 

postconviction relief.

Hillman v. State, Cause No. 49A02-1711-CR-2638, May 9, 2018 Order. 

[16] In August 2018, Hillman filed a petition for PCR. Hillman alleged that he 

received ineffective assistance of trial counsel because: (1) Attorney Hennessy 

failed to strike a juror; (2) Attorney Hennessy violated his own motion in limine 

and opened the door to questions regarding the search warrant affidavit; (3) 

Attorney Hennessy failed to call three witnesses to rebut the State’s evidence; 

and (4) Attorney Hennessy failed to convince Hillman to accept the State’s final 

plea offer. After a hearing, the PC Court entered findings of fact and 

conclusions of law denying Hillman’s petition for PCR. Hillman now appeals.

Analysis

I. Admission of Evidence

[17] Hillman argues that the trial court erred by denying his motion to suppress the 

evidence found as a result of the search warrant. According to Hillman, the 

search warrant affidavit omitted critical information. Because Hillman appeals 

from a completed trial, “the issue is ‘more appropriately framed’ as whether the 

evidence was admissible at trial.” Brown v. State, 929 N.E.2d 204, 206 n.1 (Ind. 

2010) (quoting Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)). 

The admission of evidence is generally left to the discretion of the trial court, 
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and we review admissibility challenges for abuse of that discretion. Jacobs v. 

State, 76 N.E.3d 846, 849 (Ind. 2017). “When, however, admissibility turns on 

questions of constitutionality relating to the search and seizure of that evidence, 

our review is de novo.” Id.

[18] Under the Fourth Amendment to the United States Constitution, “[t]he right of 

the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated.”3

 U.S. Const. 

amend. IV. To preserve that right, a judicial officer may issue a warrant only 

“upon probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be seized.” 

McGrath v. State, 95 N.E.3d 522, 527 (Ind. 2018). “The determination of 

probable cause is based on the facts of each case and requires the issuing 

magistrate to ‘make a practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit, there is a fair probability that evidence 

of a crime will be found in a particular place.’” Darring v. State, 101 N.E.3d 

263, 268 (Ind. Ct. App. 2018) (quoting Keeylen v. State, 14 N.E.3d 865, 871 (Ind. 

Ct. App. 2014), clarified on reh’g, 21 N.E.3d 840 (Ind. Ct. App. 2014), trans. 

denied). “[P]robable cause requires only that the information available to the 

officer would lead a person of reasonable caution to believe the items could be 

3 Hillman makes no separate argument regarding the Indiana Constitution. Accordingly, any state 

constitutional claim is waived. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (“Because Abel presents 

no authority or independent analysis supporting a separate standard under the state constitution, any state 

constitutional claim is waived.”).
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useful as evidence of a crime.” Jones v. State, 783 N.E.2d 1132, 1136 (Ind. 

2003).

[19] In Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 57 

L.Ed.2d 667 (1978), the U.S. Supreme Court held that a warrant 

is invalid where the defendant can show by a preponderance of 

the evidence that the affidavits used to obtain the warrant contain 

perjury by the affiant, or a reckless disregard for the truth by him, 

and the rest of the affidavit does not contain materials sufficient 

to constitute probable cause. See id. at 171-72, 98 S. Ct. 2674. 

Furthermore, fruits of the search will be excluded just as if the 

affidavit did not contain allegations sufficient to constitute 

probable cause. Id., at 155, 98 S. Ct. 2674.

Jones, 783 N.E.2d at 1136. 

[20] “[M]istakes and inaccuracies of fact stated in a search or arrest affidavit will not 

vitiate the reliability of the affidavits so long as such mistakes were innocently 

made.” Darring, 101 N.E.3d at 268 (quoting Utley v. State, 589 N.E.2d 232, 236-

37 (Ind. 1992), cert. denied). “In addition to the inclusion of false or misleading 

testimony in the affidavit, the defendant may also establish that the affiant 

omitted information ‘essential to a finding of probable cause.’” Id. (quoting

Keeylen, 14 N.E.3d at 872). “In the case of an alleged omission, the defendant 

must establish that the affiant engaged in deliberate falsehood or reckless 

disregard for the truth in omitting the information and show that probable cause 

would no longer exist if such omitted information were considered by the 

issuing judge.” Id. “Franks protects only against omissions that are ‘designed to 
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mislead, or that are made in reckless disregard of whether they would 

mislead.’” Id. (quoting Keeylen, 14 N.E.3d at 872). 

[21] Here, the officers requested a search warrant for the Alero. Officer Cooper’s 

search warrant affidavit provided, in part:

This investigation commenced on May 17, 2016 at 

approximately 17:38 by observing two black males standing on 

the side of the road in the 3500 block of Orchard Ave. Officer 

Gough and myself were going to speak with the two black males 

about recent violent crimes happening in the city as a shooting 

just recently occurred in the area. Officer Gough and myself 

were not able to speak to these two individuals because by the 

time we turned around in our vehicles those individuals were no 

longer there. However, while Officer Gough was driving south 

on Orchard Ave[,] he observed a red Oldsmobile Alero . . . 

parked on the east side of the street in front of 3549 Orchard Ave. 

The red Oldsmobile Alero also appeared to be parked more than 

12 inches from the curb. Officer Gough saw a black male, later 

identified as Anthony Hillman, exit the driver seat of the 

Oldsmobile Alero.

Officer Gough parked and decided to go up and speak with [ ]

Mr. Hillman. Officer Gough said that when he approached Mr. 

Hillman he observed another black male, Billy Hawkins, 

standing next to him. Mr. Hawkins has an open warrant for his 

arrest and officers were out looking for him prior to this stop. 

Officer Cooper arrived on scene and assisted Officer Gough in 

placing Mr. Hawkins into handcuffs.

Sergeant Thomas arrived on scene and was walking past the red 

Oldsmobile Alero, that Mr. Hillman exited from. The passenger 

window and back passenger Window were both up and the doors 

were shut. Sergeant Thomas observed in the front passenger
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compartment a black rifle leaning against the front of the 

passenger seat and the front passenger floor board. Sergeant 

Thomas quickly looked at me and advised me to secure Mr. 

Hillman, which I did.

Once Mr. Hillman was secure I walked by the passenger side of 

the red Oldsmobile Alero and observed that black rifle that 

Sergeant Thomas described. I also observed a black ski mask 

laying on the front passenger seat. On the back passenger seat I 

could see a bullet proof vest laying [sic] on it.

Mr. Hillman has prior convictions for Unlawful Possession of a 

Firearm by a Serious Violent Felon, cause number 49G20-0904-

FB-036754 in 2009 and Burglary, cause number 49G05-0709-FB178324 in 2009.

Direct Appeal Ex. Vol. I p. 9. The search warrant affidavit did not mention 

that the Alero and its occupants were out of Officer Gough’s sight for a couple 

of minutes while he circled the block. 

[22] Hillman was required to demonstrate that probable cause would no longer exist 

if such omitted information had been considered by the issuing judge. Even if 

the issuing court had been aware that the Alero and its occupants were out of 

Officer Gough’s sight for two minutes, the issuing court was aware of sufficient 

facts warranting probable cause to search the Alero, including: (1) Hillman was 

seen exiting the Alero and had prior convictions for unlawful possession of a 

firearm by a serious violent felon and burglary; (2) Sergeant Thomas arrived on 

the scene, walked past the Alero, and saw a rifle in the front passenger seat area 

of the vehicle; and (3) Officer Cooper also saw the rifle along with a ski mask 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3011 | September 22, 2020 Page 13 of 22

and bullet proof vest in the vehicle. The fact that the Alero and its occupants 

were out of Officer Gough’s sight for a couple minutes does not negate the fact 

that the rifle, ski mask, and bullet proof vest were in plain view in the Alero 

when the officers walked past. 

[23] Even if the issuing judge had been aware that the Alero and its occupant were 

out of Officer Gough’s sight for two minutes, this evidence is immaterial where 

the rifle was in plain view in the Alero. Accordingly, the admission of the 

evidence found during the search of the Alero pursuant to the search warrant 

did not violate Hillman’s Fourth Amendment rights. See, e.g., Darring, 101 

N.E.3d at 270 (holding that, even if all of the “omitted evidence had been 

included in the affidavit, probable cause for the issuance of the search warrant 

would still exist”).

II. Sufficiency of the Evidence

[24] Next, Hillman argues that the evidence is insufficient to support his conviction 

for unlawful possession of a firearm by a serious violent felon, a Level 4 felony. 

When there is a challenge to the sufficiency of the evidence, “[w]e neither 

reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 

210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. 

denied), cert. denied. Instead, “we ‘consider only that evidence most favorable to 

the judgment together with all reasonable inferences drawn therefrom.’” Id.

(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is 

supported by ‘substantial evidence of probative value even if there is some 

conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also 
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McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though 

there was conflicting evidence, it was “beside the point” because that argument 

“misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will 

affirm the conviction unless no reasonable fact-finder could find the elements of 

the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 

(Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). 

[25] The offense of unlawful possession of a firearm by a serious violent felon is 

governed by Indiana Code Section 35-47-4-5, which provides that: “A serious 

violent felon who knowingly or intentionally possesses a firearm commits 

unlawful possession of a firearm by a serious violent felon, a Level 4 felony.” 

Ind. Code 35-47-4-5(c). Hillman does not dispute that he qualified as a serious 

violent felon; rather, Hillman contends that he did not knowingly or 

intentionally possess the rifle.

[26] A conviction for possession of contraband may rest upon proof of either actual 

or constructive possession. Houston v. State, 997 N.E.2d 407, 409-10 (Ind. Ct. 

App. 2013). Actual possession occurs when a person has direct physical control 

over the item. Id. at 410. A person constructively possesses contraband when 

the person has: (1) the capability to maintain dominion and control over the 

item; and (2) the intent to maintain dominion and control over it. Gray v. State, 

957 N.E.2d 171, 174 (Ind. 2011). Hillman was not found in actual possession 

of the rifle; accordingly, constructive possession is at issue here.
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[27] “The capability prong [of constructive possession] may be satisfied by ‘proof of 

a possessory interest in the premises in which [contraband is] found.’” Houston, 

997 N.E.2d at 410 (quoting Monroe v. State, 899 N.E.2d 688, 692 (Ind. Ct. App. 

2009)). “This is so regardless of whether the possession of the premises is 

exclusive or not.” Id. There is no evidence that Hillman owned the Alero. The 

State, however, presented evidence that Officer Gough saw a man that he 

believed to be Hillman getting out of the Alero. After Officer Gough circled the 

block, Hillman and Hawkins were standing near the Alero, which was still 

running. Hillman was wearing the same clothing and had the same long 

dreadlocks as the man that exited the vehicle a couple minutes earlier. The rifle 

was in plain view in the front passenger seat area of the Alero. A Lacoste hat 

was found in the Alero near the rifle, and Officer Gough saw Hillman wearing 

the same type of hat previously. The State presented evidence that Hillman was 

in possession of the Alero and had recently exited the vehicle, where the rifle 

was in plain view. Accordingly, the State presented sufficient evidence to prove 

that Hillman had the capability to maintain dominion and control over the rifle.

[28] With regard to the intent prong of the test, where a defendant’s possession of 

the premises upon which contraband is found is not exclusive, the inference of 

intent to maintain dominion and control over the contraband must be 

supported by additional circumstances pointing to the defendant’s knowledge of 

the nature of the contraband’s presence. Id. Those additional circumstances 

include: (1) incriminating statements by the defendant, (2) attempted flight or 

furtive gestures, (3) location of substances like drugs in settings that suggest 
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manufacturing4

, (4) proximity of the contraband to the defendant, (5) location 

of the contraband within the defendant’s plain view, and (6) the mingling of the 

contraband with other items owned by the defendant. Henderson v. State, 715 

N.E.2d 833, 836 (Ind. 1999). 

[29] There is no indication that Hillman had exclusive control over the Alero. 

Accordingly, we will analyze whether additional circumstances exist that point 

to Hillman’s knowledge of the rifle. Hillman, who was seen driving the Alero, 

was in close proximity to the rifle, which was in the front passenger seat area of 

the Alero. The rifle would have been in Hillman’s plain view based upon the 

officers’ observations and photographs of the Alero that were admitted into 

evidence. Further, when officers searched the Alero, a Lacoste hat was found 

next to the rifle, and Hillman was seen wearing the same type of hat previously, 

which shows a mingling of the rifle with other items owned by Hillman. Under 

these circumstances, the State demonstrated Hillman’s intent to maintain 

dominion and control over the contraband. 

[30] The State presented sufficient evidence to show that Hillman had: (1) the 

capability to maintain dominion and control over the rifle; and (2) the intent to 

maintain dominion and control over it. Pursuant to Houston, 997 N.E.2d at 

410, the State was not required to show exclusive possession. We conclude that 

Hillman constructively possessed the rifle, which was found in the Alero. 

4 This factor is inapplicable here.
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Accordingly, the evidence is sufficient to sustain Hillman’s conviction for 

unlawful possession of a firearm by a serious violent felon, a Level 4 felony. 

III. Ineffective Assistance of Trial Counsel

[31] Hillman appeals the PC Court’s denial of his petition for post-conviction relief. 

Post-conviction proceedings are civil proceedings in which a petitioner may 

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

State, 133 N.E.3d 673, 681 (Ind. 2019); Ind. Post-Conviction Rule 1(1)(b). The 

petitioner bears the burden of establishing his claims by a preponderance of the 

evidence. Gibson, 133 N.E.3d at 681; P-C.R. 1(5). When, as here, the petitioner 

appeals from a negative judgment denying post-conviction relief, he “must 

establish that the evidence, as a whole, unmistakably and unerringly points to a 

conclusion contrary to the post-conviction court’s decision.” Gibson, 133 

N.E.3d at 681. When a petitioner fails to meet this “rigorous standard of 

review,” we will affirm the post-conviction court’s denial of relief. Id. Under 

this standard of review, “[we] will disturb a post-conviction court’s decision as 

being contrary to law only where the evidence is without conflict and leads to 

but one conclusion, and the post-conviction court has reached the opposite 

conclusion.” Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009).

[32] Hillman appeals the PC Court’s denial of his claim of ineffective assistance of 

trial counsel. To prevail on a claim of ineffective assistance of counsel, a 

petitioner must demonstrate both that his or her counsel’s performance was 

deficient and that the petitioner was prejudiced by the deficient performance. 

Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3011 | September 22, 2020 Page 18 of 22

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied. The 

failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 

N.E.2d 1027, 1031 (Ind. 2006). 

[33] A counsel’s performance is deficient if it falls below an objective standard of 

reasonableness based on prevailing professional norms. Woodson v. State, 961 

N.E.2d 1035, 1041 (Ind. Ct. App. 2012), trans. denied. A strong presumption 

arises that counsel rendered adequate assistance and made all significant 

decisions in the exercise of reasonable professional judgment. McCullough v. 

State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. “[A] defendant 

must offer strong and convincing evidence to overcome this presumption.” Id.

Isolated poor strategy, inexperience, or bad tactics do not necessarily constitute 

ineffective assistance. Id.

[34] To demonstrate prejudice, “the defendant must show that there is a reasonable 

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

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Weisheit v. State, 109 

N.E.3d 978, 983 (Ind. 2018) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 

2052), cert. denied. 

[35] Although Hillman raised several allegations of ineffective assistance in his PCR 

petition, on appeal, Hillman only develops an argument regarding his 

contention that his trial counsel was ineffective for opening the door to the 

admission of prejudicial or unfavorable portions of the search warrant affidavit. 
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Hillman’s contentions that his trial counsel was ineffective for failing to strike a 

juror, failing to call three witnesses to rebut the State’s evidence, and failing to 

convince Hillman to accept the State’s final plea offer are waived for failure to 

make cogent arguments. See Ind. Appellate Rule 46(A)(8). Accordingly, we 

will address only whether Hillman’s trial counsel was ineffective for opening 

the door to the admission of certain evidence from the search warrant affidavit.

[36] Hillman filed a motion in limine to prohibit the State from mentioning, in part, 

the officers’ “desire to talk to Mr. Hillman about things going on in the 

neighborhood” and about “[a] prior shooting in 34th Street.” Appellant’s App. 

Vol. III p. 8. According to the parties, the trial court ruled that the search 

warrant affidavit would not be admissible at trial. See Direct Appeal Tr. Vol. II 

p. 137.

[37] During the jury trial, Hillman’s counsel questioned Officer Cooper on crossexamination regarding his search warrant affidavit. Specifically, Hillman’s 

attorney asked:

You remember indicating that this investigation commenced on 

May 17th, 2016 at approximately 17:38 when you observed two 

black males standing on the side of the road in the 3500 block of 

Orchard Avenue? You and Officer Gough were going to talk to 

them, but you weren’t able to because by the time you turned 

around they were gone. 

Id. at 132-33. Officer Cooper responded, “Yes, I do remember that.” Id. at 133. 

Hillman’s counsel also asked Officer Cooper several other questions regarding 

the content of the search warrant affidavit. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3011 | September 22, 2020 Page 20 of 22

[38] Before redirect examination, the State argued that Hillman had opened the door 

to the admission of the entire search warrant affidavit even though it contained 

evidence that had been excluded pursuant to the trial court’s order on the 

motion in limine. The trial court found:

I think that Mr. Hennessy’s questions [ ] open the door to a 

portion of the search warrant affidavit. I — I do not agree that 

he has opened the door to the prior convictions. [ ]But I think 

that the first paragraph under the investigation portion is — I 

think that entire paragraph based on the questions that were 

asked, I believe that [ ] the doctrine of completeness would apply, 

and that Mr. Hennessy has opened the door to that information 

coming in. I don’t see any reason why based on the questions 

that were asked, [ ] we could not redact the portion [ ] regarding 

Mr. Hawkins and his bullet proof vest. It’s already subject to 

motion in limine. I don’t think the questions go to that and I 

don’t — I don’t think that’s proper. . . . [T]hat question in [and]

of itself has left a gap into what the jury might be wondering why

[ ] this officer wished to speak to the two males that he saw. And 

that is directly verbatim the language except for the part about 

recent violent crimes happening in the city as a shooting just 

recently reported in the area. I think that absolutely comes in, 

based on the question that was asked. . . . I’m not gonna allow 

you to put the whole affidavit in, based on the question, the one 

or two questions that was [sic] asked. However, I am going to 

allow the State to ask Officer Cooper directly about the — it was 

basically the first three sentences — let’s see, one, two, three —

the first three sentences of the affidavit. I think that is 

appropriate for the State to ask him about —

Id. at 139-41.

[39] On redirect examination, the State then asked Officer Cooper the following:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3011 | September 22, 2020 Page 21 of 22

Q. Officer Cooper back on May l7th 2016, [ ] did you and Officer 

Gough intend to speak with two black males about recent violent 

crimes in the city?

A. Yes.

Q. Did you intend to speak to those two individuals [ ] about a 

shooting that just recently occurred in the area?

A. Yes.

Id. at 157-58.

[40] Hillman argues that this conduct amounted to ineffective assistance of trial 

counsel. The PC Court, however, rejected Hillman’s contention and found: 

While attorney Hennessy may have “opened the door” to

additional, limited evidence by the State, this evidence was not so 

damning so as to deprive the defendant of a fair trial. 

Additionally, the introduction of the State’s rebuttal evidence did 

not constitute a failing so severe as to render the result of the 

Petitioner’s jury trial unreliable, or to otherwise constitute a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of his trial would be different.

Appellant’s App. Vol. IV p. 126. The PC Court found that Hillman was not 

prejudiced by Attorney Hennessey’s action. We agree.

[41] The trial court allowed only limited redirect examination regarding the search 

warrant affidavit because of Hillman’s counsel opening the door. The State 

merely elicited from Officer Cooper that they wanted to speak with Hillman 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3011 | September 22, 2020 Page 22 of 22

because they were searching for two unidentified black men regarding some 

recent violent crimes in the area. There was no indication that a rifle matching 

that found in the Alero was used in those crimes or that Hillman or Hawkins 

were suspects in those crimes. This evidence merely explained why the officers 

approached Hillman and Hawkins. Under these circumstances, we cannot say 

there is a reasonable probability that, but for trial counsel opening the door, the 

result of the proceeding would have been different. The PC Court’s denial of 

Hillman’s petition for PCR is not clearly erroneous.

Conclusion

[42] The trial court properly admitted evidence found in the Alero as a result of the 

search warrant. The evidence is sufficient to sustain Hillman’s conviction, and 

the PC Court’s denial of Hillman’s petition for PCR is not clearly erroneous. 

We affirm.

[43] Affirmed.

Kirsch, J., and Pyle, J., concur.