## FOR PUBLICATION

A TTORNEY FOR A PPELLANT : ATTORNEYS FOR APPELLEE : F. THOMAS SCHORNHORST GREGORY F. ZOELLER Oxford, Mississippi Attorney General of Indiana CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

WILLIAM HINESLEY, III , ) ) Appellant

- Defendant , ) ) vs. ) No. 55A05

- 1302

- PC

- 80 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE MORGAN SUPERIOR COURT The Honorable Jane Spencer Craney , Judge Cause No. 55D03

- 1205

- PC

- 673
December 19, 2013 OPINION

– FOR PUBLICATION CRONE, Judge2 Case Summary 1 Following a bench trial , William Hinesley, III, was convicted of class A felon y child molesting. After this C ourt affirmed his conviction on direct appeal, Hinesley filed a petitio n for post

- conviction relief claiming that he was denied the effective assistance of trial counsel due to his counsel’s deliberate strategic choice to permit the trier of fact to consider as substantive evidence hearsay statements attributed to the State’s primary witnesses. Hinesley also claimed ineffective assistance due to his counsel’s failure to object to improper vouching and uncharged misconduct testimony, and his counsel’s failure to introduce a medical report into evidence at trial. In addition, Hinesley raised a freestanding claim of fundamental error due to alleged prosecutorial misconduct based upon the prosecutor’s knowing introduction of the alleged inadmissible hearsay, vouching, and uncharged misconduct evidenc e . The post

conviction court denied relief, and Hines l e y now appeals. Concluding that the post

conviction court properly determined that Hinesley failed to demonstrate that his counsel’s performance was deficient or prejudicial, and further concluding that his claim of prosecutorial misconduct is unavailable, w e affirm. Facts and Procedural History On direct appeal, another panel of this Court recited the facts underlying Hinesley’ s conviction as follows: On the night of January 16, 2009, the Hinesley family was at home in Paragon, Indiana. Hinesley, his son William J. Hinesley, IV (“Billy”), who was twenty

1 We held oral argument on November 19, 2013, in Indianapolis. We t hank counsel for their preparation and presentations , and we commend them on the ir outstanding advocacy.3

years old at the time, a foster daughter, V.V., who was thirteen years old at the time, and others were present. Eventually, Hinesley and V.V. were the only ones awake. They s at on a couch in the living room and talked as they watched a movie. Next, Hinesley got up and went into the kitchen. When he returned, he approached V.V. and pulled down her pants and underwear. Hinesley got on top of V.V. and put his penis in her vagi na. After a short period of time, V.V. tried to push Hinesley away, and he got up and left the room. V.V. got up and pulled up her pants. Meanwhile, Billy was going to the kitchen to get a glass of water. He encountered V.V., who told him that she had just had sex with Hinesley. Billy sent V.V. to the master bedroom while he woke his sister, S.H., and had her go into the master bedroom with him and V.V. In the morning, Billy contacted his uncle, who was a police officer in Mooresville , Indiana, and th e local police were contacted. Hinesley v. State , No. 55A04

- 1102

- CR

- 90, slip op. at 1 (Ind. Ct. App. Oct. 27, 2011). The State charge d Hinesley with two counts of class A felony child molesting and two counts of class C felony child molesting. Prior to trial, the State dismissed one of the class C felony
counts. A bench trial was held on December 1, 2010 . The State’s first witness was Detective Dan Downing of the Morgan County Sheriff’s Department, the chief investigating officer in Hinesley’s case. During his testimony, Detective Downing summarize d unsworn statements that he had taken from V.V. and Billy during interviews on th e morning of January 17, 2009. Detective Downing testified that Billy stated that he had left V.V. and Hinesley alone in the living room and later came down the hallwa y and observed V.V. jump off the couch and pull her pants up from around her ankle area. Trial Tr. at 17. Detective Downing testified that Billy stated that he spoke with V.V. and asked her if he had seen what he thought he saw and that V.V. had replied “y es.” Id

. at 18. Defense counsel did not object to Detective4

Downing’s testimony regarding Billy’s statement. A vide o recording of Billy’s interview was also entered into evidence without objection

. In that r ecording, Billy stated , “I guess I asked her did he touch you in some spot. She said yes. And she told me that he had entered her.” Id . at 21, State’s Ex . 2. Detective Downing then testified regarding V.V.’s interview . Detective Downing described V.V. ’s demeanor as “[r]elatively childlike [ , ] she was very protected, very guarded. She acted much younger ... than her physical age.” Id . at 23. He opined, “ she seemed very believable. I didn’t see any reason not to believe her statements, especially due to the fact they were corroborated ... by Billy.” Id . Detective Downing testified t hat V.V. stated that she was rest ing her head in Hinesley’s l ap when Hinesley left to go into the kitchen to get something. Detective Downing testified that V.V. stated that, when Hinesley came back , he began rubbing her breast, buttock, and vaginal area. Detective Downing recalled,

s he then stated that he made penetration of her vaginal area. She couldn’t tell me how long that went on or really give me any details about tha t. At that point in time she stated that Mr. Hinesley told her to pull her pants down, at which point in time he inserted ... his penis into her vagina. Id . at 25. When asked by the prosecutor , “W hat caused the intercourse to stop ? Did she indicate?” Dete ctive Downing responded, “She said ... that they heard a noise and Mr. Hinesley go t up off the top of her. At that point in time she seen Billy in the kitchen.” Id . at 27. Thereafter, V.V. was called as a witness by the State. She testified that she was
rest ing her head on Hinesley’s lap watching a movie when he got up to go to the kitchen. When he returned , he pulled her pajama bottoms and panties down to her ankles. V.V.5

testified that Hinesley climbed on top of her and entered her vagina with his pen is. She stated that she was stunned at first and started saying , “I want to go to bed

. ” Id . at 117.
V.V. s tated that she pushed Hinesley of f her . V.V. testified that she then saw Billy walking down the hall. Billy asked her if he “had seen what he ju st seen , ” and she replied , “yes.” Id

. at 118. V.V. testified that she used slang words to describe the intercourse to Billy by stating that Hinesley had put his “tweeter” into her “down there.” Id . at 120. On cross

- examination, V.V. admitted that, in a pretrial deposition, she said that she “forgot” or “wasn’t sure” if Hinesley had penetrated her with his penis. Id . at 125, 143

- 45. V.V. testified that she was lying when she gave that deposition testimony. Next, the State called Billy as a witness. Bi lly testified that V.V. told hi m that she had sex with his father but that “[a]t this point in time I do not remember what I saw.” Id . at 170. The prosecutor reminded Billy about his statement to Detective Downing and asked Billy if he remembered telling Detective Downing that he actually saw V.V. pulling her pants up. Billy indicated that he remembered saying the words “I think I saw” to Detective Downing
but claimed to no w only recall what V.V. told him had happened and not what he saw. Id . at 174. De fense counsel cross

- examined Billy by pointing out that Billy and V.V. were in a sexual relationship at the time of the incid ent and that Billy repeatedly lied about and denied the relation ship during police interviews. Billy admitted that he was afraid o f getting caught in his sexual relationship with V.V. because he knew that he could be charged criminally due to her age. Billy stated that he lied to Detective Downing about his relationship with V.V. and that he “could have” lied when he told Detective Downing that he actually saw anything6

occur between his father and V.V. Id . at 178. Billy agreed that “there’s a good chance that [he] didn’t see anything at all.” Id

. Billy claimed on cross - examination that he learned after his initial interview with Detective Downing that V.V. was pregnant with his baby at the time of the alleged molestation

. 2 At the close of the State’s case

- in

- chief, defense counsel moved for an involuntary dismissal of counts II and III, one class A felony child molesting cou nt alleging deviate sexual conduct and the class C felony child molesting count alleging touching or fondling with intent to arouse , due to the lack of evidence presented by the State. The trial court granted the motion a nd dismissed counts II and III , an d the trial proceeded as to count I, class A felony child molesting alleging sexual intercourse. At the conclusion of the trial, the court found Hinesley guilty of one count of class A felony child moles t ing . The trial court imposed a sentence of thirty years with five years suspended. This Court affirmed Hinesley’s conviction on direct appeal. See Hinesley , s lip op. at 3. On May 16, 2012, Hinesley filed a petition for post

- conviction relief. The post

- conviction court held an evidentiary hearing on O ctober 25 and November 16, 2012. Thereafter, on February 12, 2013, the post

- conviction court issued its findings of fact, conclusions of law, and judgment denying post

- conviction relief. This appeal followed.

2 The record indicates that, at the time of trial, V.V. had given birth to the baby and Billy was serving a work

- release prison sentence in Johnson Co unty for class C felony child molesting due to his relationship with V.V. Trial Tr. at 160

- 63, 183.7 Discussion and Decision Standard of Review
In Wilkes v. State , 984 N.E.2d 1236 (Ind. 2013), o ur supreme court reiterated the appellate standard of review regarding post

- co nviction proceedings. Specifically, the court stated , Post

- conviction proceedings are civil proceedings in which the defend ant must establish his claims by a preponderance of the evidence. Post

conviction proceedings do not offer a super appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post

- conviction rules. Those gro unds are limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata

. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for post

- conviction proceedings. Because the defendant is appealing from the denial of post

- conviction relief, he is appealing from a negative judgment and bears the burden of proof. 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. We review the post

- conviction court’s factual findings for clear error, but do not defer to its conclusions of law. Id. at 1240 (citations and quotation marks omitted)

. We will not reweigh the evidence or judge the credibility of witnesses, and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post

- conviction court’s decision. Graham v. State , 941 N.E.2d 1091, 1096 (Ind. C t. App. 2011), aff’d on reh’g , 947 N.E.2d 962.8 I. Ineffective Assistance of Trial Counsel Hinesley argues that the post

- conviction court erred in finding that he was not denied the effective assistance of trial counsel. We review claims of ineffective as sistance of counsel under the two

- prong test set forth in Strickland v. Washington , 466 U.S. 668 (1984). Bieghler v. State , 690 N.E.2d 188, 192 (Ind. 1997), cert. denied (1998). To prevail on a claim of ineffective assistance of counsel, a petitioner mus t demonstrate both that his 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 , 466 U.S. at 687), cert. denied (2001). A counse l’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v.
State , 778 N.E.2d 816, 824 (Ind. 2002). To establish prejudice, the petitioner must show that there is a reasonable p robability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id . Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance. Clark v. State , 668 N.E.2d 1206, 1211 (Ind. 1996), cert. denied (1997). When considering a claim of ineffective assistance of counsel, we strongly presume “that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgm ent.” Morgan v. State , 755 N.E.2d 1070, 1073 (Ind. 2001). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State , 771 N.E.2d 70, 73 (Ind. 2002).9

We must initially acknowledge that the judge who presided over Hinesley’s original trial is also the judge who presided over the post

- conviction proceedings. This Court has stated that a post

- conviction court’s findings and judgment should be entitled to “ greate r than usual deference ” when the post

- conviction judge is the same judge who conducted the original trial. See McCullough v. State , 973 N.E .2d 62, 75 (Ind. Ct. App. 2012), trans. denied (2013). Significantly, i n such a case, the judge is uniquely situate d to assess whether trial counsel’s performance fell below an objective standard of reasonableness and whether, but for counsel’s unprofessional conduct, there was a reasonable probability that a different verdict would have been reached. Id . (citing Stat e v. Dye , 784 N.E.2d 469, 476 (Ind. 2003) (noting that because judge presided both at original trial and post

- conviction hearing, judge was in “an exceptional position” to assess weight and credibility of factual evidence and whether defendant was deprived of fair trial)). In addition, as we discuss below within the context of the judicial t emperance presumption , we are presented here with a case in which the judge here not only presided both at the original trial and t he post

- conviction hearing, but

was a lso the tri er of fact in the bench trial. That being said, we turn to Hinesley’s multiple claims of ineffectiveness.
A
. Hearsay Evidence Hinesley first asserts that his trial counsel rendered ineffective assistance by delibe rately failing to object to t he State’s introduction of inadmissible hearsay evidence. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule10

801(c). Generally, an out

- of

- court statement offered to prove the truth of the matter asserted is not admissible unless it falls under a hearsay exception

. See Ind. Evidence Rule 802. If a statement involves hearsay within hearsay, also known as multiple hearsay or double hearsay, to be admissible, each part of the combined statements must conform with an exception to the hearsay rule

. See Ind. Evidence Rule 805.
B efore Billy and V.V. were called as witnesses , and without objection, Detective Downing was permi tted to summarize what both Billy and V.V. told him during interviews conducte d the morning after the alleged molestation. Detective Downing was also permitted to testify regarding what V.V

. had stated to Billy on the night in question, otherwise k nown

as hearsay within hearsay (V.V. to Billy, and Billy to Detective Downing). A video

rec ording of Billy’s interview was subsequently admitt ed into evidence without objection. At the post

- conviction hearing, d efense counsel testified that his deliberate deci sion to
not object to Detective Downing’s testimony and Billy’s recorded interview , which each contained hearsay statements and at least one double hearsay statement , was necessary for his trial strategy. He stated that his defense theory was “that the po lice investigation was pathetic” and that V.V. “was lying ... and told so many different stories that ... that didn’t add up.” PCR Tr. at 31. He believed that Billy’s and V.V.’s failure to disclose to Detective Downing the fact that they were in a sexual r elatio nship at the time of the alleged molestation was evidence of their motive to fabricate their stories

. Defense counsel testified, [T]he general tactical decision was made that Billy and V.V. were all over the place and giving so many different storie s, that the more stories that were out there, the more different tales that they were telling, I believed that Judge11

Craney would see that as (inaudible) and [not] find [Hinesley] guilty beyond a reasonable doubt. Id

. at 77. Hinesley argues that this s trategy was unreasonable and that counsel clearly failed to understand the distinction between hearsay evidence received as substantive evidence and

non - hearsay evidence of prior inconsis tent statements admissible for impeachment purposes. See Gray v. Stat e , 982 N.E.2d 434, 437 (Ind. Ct. App. 2013) (noting that Ind. Evidence Rule 613 allows the use of a prior inconsistent statement to impeach a witness, and when used in this manner, the statement is not hearsay). He argues that there was no excuse for allo wing the State to introduce inadmissible hearsay statements of a witness as substantive evidence before that witness testified, especially when the statements were admissibl e for impeachment purposes only. Hinesley argues that by allowing the hearsay to c ome in as substantive evidence rather than waiting for Billy and V.V. to testify and to impeach them with their prior inconsistent statements, “counsel [caused] irreparable damage to Hinesley’s case.” Appellant’s Reply Br. at 6.

. A defendant has the burd en to demonstrate to the post

- conviction court that his counsel’s trial strategy was unreasonable “under prevailing professional norms.” Strickland , 466 U.S. at 688. That the defense strategy was ultimately unsuccessful does not mean that counsel was con stitutionally ineffective. Wilkes , 984 N.E.2d at 1245 (citing Strickland , 466 U.S. at 689). Indeed, just because counsel is unable to pursue a reasonable defensive strategy as effectively as he or she wanted to does not mean that the plan was a bad plan. McCullough , 973 N.E.2d at 76. “ Strickland does not guarantee perfect representation, only a12

reasonably competent attorney.” Woodson v. State , 961 N.E.2d 1035, 1041

- 42 (Ind. Ct. App. 2012) (citation and quotation marks omitted), trans. denied . “There is no constitutional requirement that a defense attorney be a flawless strategist or tactician.” Id . at 1042. Regarding defense counsel’s chosen strategy, t he post

- conviction court specifically found: 20. [Defense counsel] specifically and knowingly allow ed the pre

- trial

statements of Billy and V.V. to be presented as substantive evidence, without making objections on any hearsay basis, based on his trial strategy of allowing what he believed to be multiple inconsistent s tatements to come into evidence ;

... . 34. During the PCR hearing, [defense counsel] testified that his theory of trial defense was that V.V. and the Defendant’s son, Billy, had fabricated the claims against Hinesley for ulterior reasons and that by allowing all of their pre

- trial s tatements into evidence, he could demonstrate the various inconsistencies in their statements; 35. [Defense counsel] knowingly allowed hearsay evidence into the record as substantive evidence due to his trial strategy. PCR App. at 147. Thereafter, th e post

- conviction court concluded that defense counsel’s “failure to object to hearsay evidence from the various witnesses during the trial was a trial strategy and was reasonable under the unique circumstances of this case.” Id . at 151. The State relies on our opinion in Curtis v. State , 905 N.E.2d 410 (Ind. Ct. App. 2009), trans. denied , to support the post

- conviction court’s conclusion that permitting the hearsay to be introduced constituted reasonable trial strategy. In Curtis , defense counsel stipul ated to the admission of various pretrial hearsay statements made by children regarding alleged sexual abuse according to the strategy that “the inconsistencies among the statements13

might work to [the defendant’s] advantage.” Id . at 415

. Indeed, counsel in Curtis knew “the [hearsay] evidence would be introduced in one form or another” so he made the deliberate strategic choice to try to use the evidence to the defendant’s advantage. Id

. On appeal from the denial of post

- conviction relief, we concluded that the post

- conviction court properly refused to second

- guess counsel’s strategy. Id

. We specifically noted that, while the defendant claimed that his convictions on four counts of child molesting and three counts of battery demonstrated the failure of his counsel’s strategy, the defendant was acquitted on two counts of vicarious sexual gratification. Accordingly, we concluded that although the record was unclear, “the strategy employed by [defense] counsel may have been a factor in those acquittals.” Id

. While Curtis is not precisely on point factually , its reasoning regarding the deliberate trial strategy chosen by defense counsel here is instructive. Hinesley concedes that the hearsay evidence was adm issible for impeachment purposes, and therefor e the evidence was going to be admitted in one form or a nother. As defense counsel explain ed during the post

conviction hearing, he hoped tha t allowing all of the statements into evidence and demonstrating the inconsistencies among the multiple statements would work to Hines le y’ s advantage to show V.V.’s and Billy’s motive to fabricate and to create reasonable doubt. While counsel’s manner of execution may not have been perfect or even preferred , it appears that hi s performance was consistently aimed at e xecuting this chosen defense strategy. T o the extent that Hines le y claims that his conviction demonstrates the failure of his counsel’s strategy, we note that the trial court dismissed two child molesting counts at the close of the14

State’s case

- in

- chief d ue to lack of evidence. As in Curtis , although the record is unclear, the strategy employed by counsel may have been a factor in those dismissals. We cannot say that the post

- conviction court erred when it concluded that defense counsel’ s trial strategy was reasonable under the uni que circumstances of this case.
B
. Vo uching Testimony Hi nesley next claims that he was denied the effective assistance of counsel due to his counsel’s failure to object and/or move to redact two instances of improper vouching testimony

. Regarding V.V., Detective Downing testified: “But she seemed very believable. I didn’t see any reason not to believe her statements, especially due to th e fact they were corroborated [ by ] Billy.” Tr. at 23. Similarly, in his recorded state ment which was admitted into evidence, Billy stated to Detective Downing that “I don’t believe V.V. made this up.” Id . at 21, State’s Ex. 2. Vouching testimony is generally prohibited under Indiana Evidence Rule 704(b), which states: “Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” Such testimony invades t he province of the jury because it is essential that the trier of fact determine the credibility of the witnesses and the weight of the evidence. Gutierrez v. State , 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012)

. The State maintains that , even assuming that these two statements did constitute improper v ouching testimony to which a proper objection would have been sustained ,15

counsel ’s failure to object to the statements was again consi stent with hi s trial strategy. 3 During the post

- conviction proceedings, defense counsel testified that although he did no t specifically recall his justification for not objecting to Detective Downing’s alleged vouching testimony, he believed that his decision may have been premised on his general trial strategy of try ing to expose the “totality of Detective Downing’s patheti c investigation” and how Detective Downing seemed to just accept V.V. and Billy’s account of things but “did not know many of the facts” that he needed to know. PCR Tr. at 49. As for Billy’s alleged vouching statement , counsel stated that he did not obje ct because he knew that Billy’s forthcoming trial testimony was going to be “quite to the contrary ,” and thus this was again supportive of his general strategy of pointing out the numerous variations in V.V.’s and Billy’ s stories. Id . a t 50. While tria l counsel could not specifically explain his reasons for failing to object, we observe that courts should not insist that attorneys “‘confirm every aspect of the strategic basis for his or her actions.’” Woodson , 961 N.E.2d 1041 (quoting Harrington v. Ric hter , ___ U.S.___, 131 S. Ct. 770, 790 (2011)). In light of defense counsel’s overall tri al strategy, counsel’s failure to object to the two alleged vouching statements did not constitute deficient

3 While we need not reach a conclusion as to whether a proper objection to the alleged vouching statements would have been sustained, w e note that Hinesl ey’s trial occurred in 2010, prior to our supreme court’s opinion in Hoglund v. State , 96 2 N. E.2d 1230 (Ind. 2012). Before Hoglund , courts allowed “some accrediting of the child witness in the form of opinions from parents, teachers, and others having ade quate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters.” Lawrence v. State , 4 64 N.E.2d 923, 925 (Ind. 1984). Applying the Lawrence rule , however, was not simple , as ‘“the line between the impermissible vouching for the victim’s credibility on the one hand and rendering permissible opinions with regard to a proclivity to not exaggerate or fantasize, on the other hand, is an extremely fine one.’” Hoglund , 962 N.E.2d at 1233 (quoting Hook v. State , 705 N.E .2d 219, 223 n.4 (Ind. Ct. App. 1999) , trans. denied ). Hoglund eliminated this “vouching testimony exception in the cont ext of child

- molesting cases.” Palilonis v. State , 970 N.E.2d 713, 729 (Ind. Ct. App. 2012), trans. denied

.16

performance and was not unreasonable under the circumstan ces. Moreover, the concern with improper v ouching testimony is that the jury may be influenced in a manner inconsistent with the defendant’s right to a fair trial. This particular concern is not present here because, as we discuss more fully below, this was a bench trial. Finally, the record reveals that the two
statements were isola ted and not pervasive and did not affect the outcome of the trial. We are unpersuaded that but for counsel’s failure to object to the alleged improper vouching
statements, t here is a reasonable probability that the verdict would have been different. C . Uncharged Misconduct Hinesley makes a brief argument regarding defense counsel’s failure to move to redact
from Billy’ s recorded statement some “irrelevant” references as wel l as Billy’s reference to a conversation with his sister, S.H. , in which he stated that S.H. complained to him about unwanted physical attention from Hinesley. Hi nesley asserts that Billy’s reference to his conversation with S.H. “ implies ” uncharged misco nduct in violation of Indiana Evidence Rule 404(b). Appellant’s Br. at 26. Evidence which creates a mere inference of prior misconduct is not prohibited by Evidence Rule 404(b). Dixson v. State , 865 N.E.2d 704, 712 (Ind. Ct. App. 2007 ), trans. denied

. Additionally, when looking at the evidence presented as a whole, we observe that the reference was inconsequential , and Hinesley has failed to show that he suffered prejudice as a result

. D
. Medical Report Hinesley next asserts that his counsel was inef fective for failing to obtain and introduce the medical report from a physical exami nation of V.V. conducted the day after the17

molesta tion , which indicated th at V.V. did not suffer injury to her vagina and that her hymen remained intact

. Hinesley concedes that although introduction of the re port would not have negated the molestat ion allegation, the report would have “strengthened” his case. Appellant’s Br. at 31. Hinesley argues that “it would have been helpful to his defense to show that not only had [V .V.’s] hymen survived her claimed penetration” but there was no sign of any “abrupt” or “forcible” penetration. Appellant’s Reply Br. at 14. During post

- conviction proceedin gs, defense counsel stated that he could not recall if the medica l report was i n his file and could not explain his failure to both seek and introduce the report . Regardless, we cannot say that the medical report has th e same exculpatory value that Hines le y now assigns it such that the result of the trial would have been different h ad counsel introduced it

. P art of the defense theory revolved around Billy and V.V.’s hidden sexual relationship and V.V.’s pregnancy with Billy’s baby at the time of the all eged molestation. In light of the fact that V.V. was both sexually active and pr egnant at the time of the alleged molestation, a report stating that V.V.’s hymen was still int act becomes far less significant , as the report neither supports nor negat es sexual contact with Hinesley, and could tend to undermine the extent of the sexual r elationship between V.V. and Billy.
W hile Hinesley belabors the importance of the lack of evidence of physical trauma to V.V.’s vagina reported by the examiner , we observe that V.V.’s trial tes timony did not recount a violent or abrupt sexual encounter. Moreover, the parties had already stipulated that DNA tests, conducted at the same time as the physical examination, showed no evidence of sexual contact between Hinesley and V.V. Tr. at 7. We agree with the State that the DNA18

evidence is by far the mo re compelling exculpatory evidence and is also evidence not inco nsistent with the defense stra tegy. We cannot say that failure to introduce the medical report constituted i neffective assistance of counsel

. See , e.g. , Kubsch v. State , 934 N.E.2d 1138, 114 2 (Ind. 2010) ( refusing to find ineffective assistance in failing to introduce allegedly exculpatory evidence when th at evidence did not support the defense theory and it was impossible to conclude that the evid ence had exculpatory value). Significantly, Hinesley submitted t he medical report at the post

- conviction hearing , and the court determined that even had counsel introduced the report at trial, the outcome would not have changed. Hinesley has not met his burden on this issue.

E . Cumulative Impact & Judicial Temperance Hinesley maintains that the record reveals that, due to defense counsel’s unreasonable trial strategy and multiple errors , his conviction was improperly based on evidence that should have been excluded or, at the very least, disregarde d. He contends that it was the cumulative impact of his counsel’s poor decisions that rendered the representation ineffective and caused him prejudice

. 4 A court making the prejudice inquiry must ask if the defendant has met his burden of showing that the decision reached would reasonably likely have been

4 We note that, in his appe llant’s brief , Hinesley alleges numerous other isolated deficiencies in counsel’s performance that we conclude do not amount to ineffective assistance but choose not to specifically address herein. (For example, he concedes that counsel effectively cross - e xamined V.V. in some respects, but argues that counsel could have done better .) See Martin v. State , 760 N.E.2d 597, 601 n.3 (Ind. 2002). As our supreme court has stated, “[a] multitude of marginal issues may hide those with merit. To quote Justice Jack son: ‘Legal contentions, like currency, depreciate through over

- issue.”’ Id. (quoting Justice Robert H. Jackson, Advocacy Before the United States Supreme Court , 25 Temple L.Q. 115, 119 (1951)).19

different absent the errors. Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997) (citing Strickland , 466 U.S. at 696). Hinesley cannot demonstrate that he suffered such prejudice

. I n considering wheth er Hinesley suffered prejudice , we look here to the application of the judicial

- temperance presumption

. Hinesley’s trial was a ben ch trial and not a jury trial. We generally presume that in a proceeding tried to the bench, a court renders its decisions

so lely on the basis of re levant and probative evidence. Konopasek v. State , 946 N.E.2d 23, 28 (Ind. 2011). This longstanding principle has been termed the judicial

- temperance presumption. Id

. We presume that the trial judge is aware of and knows the law and considers only evidence properly before him or her in reaching a decision. Conley v. State , 972 N.E.2d 864, 873 (Ind. 2012). The risk of prejudice is quelled when the evidence is solely before the trial court. Id

. 5 Although the post

- conviction cou rt acknowledged that defense counsel allowed hearsay evidence to be presented by the State as substantive evidence without objection, the post

- conviction court did not indicate that, as the trial judge, she relied on that eviden ce. To the contrary, Judge Craney specifically concluded that, “regardless of any hearsay admitted without objection,” she “found V.V. to be a credible witness and believed her testimony.” Appellant’s App. at 163. Judge Craney ’s conclusion that she did not rely on inadmissible

5 Our supreme court has noted that the judicial

- temperance p resumption, although broad, is not without limits. Konopasek , 946 N.E.2d at 28. In cases where a defendant has made a specific objection to ev idence that is overruled, it becomes “a curious ratiocinative process which presumes that the trial court will d isregard that which it holds admissible over specific objection.” Id . (citing Fletcher v. State , 264 Ind. 132, 137, 340 N.E.2d 771, 774

- 75 (1976) ) . Therefore, one way that a defendant can overcome the presumption is by showing that the trial court admitt ed evidence over a specific objection. Id

. at 29

.20

evid ence is further supported by the fact that sh e dismissed two of the child molesting counts, specifically count II regarding deviate sexual conduct and count III, touching or fondling with intent to arouse, as the only evidence of those counts came in throu gh Detective Downing’s testimony as opposed to V.V.’s direct testimony. Regarding Judge Craney’s alleged reliance on vouching or uncharged misconduct evidence due to defense counsel’s trial strategy , while she did not affirmatively st ate in her findings t hat she did not improperly rely on that evidence in reachin g her verdict, Hinesley has given us no cause to presume that she did not. Under the circumstances, Hinesley has failed to rebut the judicial

- temperance presumption. In sum, Hinesley has failed t o demonstrate a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the procee ding would have been different. As stated earlier, Judge Craney was not only the trier of fact and the trial judge, but she was a lso the post

- conviction judge. We cannot imagine a post

- conviction jurist in a better position to assess Hinesley’s current claims of ineffective assistance of counsel. Judge Craney has made such an assessment , and her findings and judgment are entitled to grea ter than usual deference by this Court. See McCullough , 973 N.E.2d at 75. H inesley has not met his burden to show that the evidence, as a whole, unmistakably and unerringly points to a contrary conclusion. Based upon the foregoing, we conclude that the post

- conviction court did not err when it concluded that Hinesley was not denied the effective assistance of trial counsel

.21 II. Prosecutorial Misconduct Finally, i n addition to claiming that his counsel was ineffective for failing to object t o the introd uction of alleged inadmissible evidence , Hinesley asserts that the prosecutor committed misconduct by knowingly introdu c ing and/or eliciting that evidence. Because this issue was known and available o n direct appeal but not raised, Hinesley’s c laim is not

ava ilable as a free standing claim of fundamental error on petition for post

- conviction relief

. Free standing claims of fundamental error are not available in post

- conviction proceedings. Sanders v. State , 765 N.E.2d 591 , 591 (Ind. 2002); Graham v. State , 941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011) aff’d on reh’ g, 947 N.E.2d. 962

. 6 The judgment of the post

- conviction court is affirmed.

. Affirmed. BARNES, J., and PYLE, J., concur.

6 H inesley concedes that freestanding claims of fundamental error are unavailable on post

- conviction relief, but invites us to address the following question: When a post

- conviction petitioner was rep resented by the same lawyer on direct appeal as at trial, and where that lawyer could not assert his own ineffectiveness at trial or assert fundamental error because of counsel’s failure to object to prosecutorial misconduct, may a post

conviction petition er raise prosecutorial misconduct as a free standing issue? Hinesley urges us to recognize a limited exception to our supreme court’s established holding that freestanding f undamental error claims are not available to a post

- conviction petitioner. He dire cts us to our supreme court’s opinion in Askew v. State , 500 N.E.2d 1219 (Ind. 1986), in which the court acknowledged that because the same counsel represented the appellant at trial and on appeal, it is unreasonable to believe that counsel would have rais ed the question of his own competency on appeal. Id . at 1220. Hines le y argues that the precedent precluding arguing fundamental error in post

- conviction proceedings is premised upon the assumption that the petitioner had one fair opportunity to raise an issue on direct appeal and that, because Hinesley’s trial and appellate counsel were the same, Hinesley did not have that opportunity regarding prosecutorial misconduct because it was intertwined with ineffectiveness of counsel

. While Hinesley points out an interesting quandary, absent specific direction from our supreme court, we decline his inv itation to recognize an exception to the established precedent.22

.