Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019 Page 1 of 20

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

Henry L. Newton

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

Henry L. Newton,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

July 30, 2019

Court of Appeals Case No.

18A-PC-1456

Appeal from the Vanderburgh 

Circuit Court

The Honorable David D. Kiely, 

Judge

The Honorable Kelli E. Fink, 

Magistrate

Trial Court Cause No.

82C01-1404-PC-4

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1456 | July 30, 2019 Page 2 of 20

[1] Henry L. Newton (“Newton”) filed a pro se petition for post-conviction relief in 

Vanderburgh Circuit Court. The post-conviction court denied Newton’s 

petition, and Newton appeals pro se. Concluding that Newton has not 

established that he was subjected to ineffective trial and appellate counsel, we 

affirm. 

Facts and Procedural History 

[2] In our memorandum decision on Newton’s direct appeal, a panel of this court

set forth the facts and initial procedural history underlying Newton’s

convictions as follows: 

About midnight on April 13, 2012, thirty-six-year-old Henry 

Newton, armed with a gun, broke into eighty-two-year-old James 

Moll’s [“Moll”] home and threatened to kill him. Newton took 

Moll into the bathroom, tied his hands behind his back with an 

extension cord, and placed him on the floor on his back with his 

head against the end of the bathtub. Newton then took two debit 

cards from Moll’s wallet, demanded that Moll give him the PIN 

to each card, and left Moll’s house when Moll complied with his 

demand.

Moll eventually freed himself around 8:30 the following morning 

and contacted the police. Evansville Police Department Detective 

Brent Melton [“Detective Melton”] was dispatched to Moll’s 

home. When Moll told him about the stolen debit cards, 

Detective Melton contacted Fifth Third Bank. Three days later, 

the Bank notified Detective Melton that someone had withdrawn 

money from Moll’s accounts by using the debit cards at two 

different ATM’s. One card was used at an ATM near Moll’s 

house about ten minutes after he was robbed, and the other card 

was used at an ATM at Casino Aztar about 9:30 the following 

morning. Evansville Police Department Detectives Tony Walker 
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[“Detective Walker”] and Doug Hamner [“Detective Hamner”]

watched the video surveillance footage from both ATM’s and 

both detectives recognized Newton as a potential witness in a 

prior unrelated case. Detective Hamner also recognized Newton 

from the local library where the detective worked as an off-duty 

security officer.

Detective Melton arrested Newton at Newton’s hotel room at 

approximately 11:30 a.m. on May 9, 2012. A judge issued a 

search warrant at 3:50 p.m. that same day. Detectives Melton 

and Hamner then searched Newton’s room. During the search, 

the detectives found a fleece jacket with a distinctive New 

Orleans, LA, USA logo, a light blue button down shirt, a gray, 

red and white jacket, and a pair of black pants, all worn by 

Newton when he withdrew cash from the ATM’s using Moll[]’s 

debit cards as shown in the surveillance videos. Detective Melton 

left a copy of the search warrant in Newton’s motel room.

On May 14, 2012, the State charged Newton with burglary, a 

class A felony, criminal confinement, a class B felony, robbery 

resulting in bodily injury, a class B felony, armed robbery, a class 

B felony, and theft, a class D felony. The State also alleged that 

Newton was a habitual offender.

Before trial, Newton filed a motion to suppress all evidence 

found during the search of his motel room. Newton alleged that 

detectives violated his constitutional rights by searching his room 

before the search warrant was issued. The trial court denied 

Newton’s motion after a hearing. At trial, during the crossexamination of Detective Hamner, defense counsel pointed out 

that the detective’s report stated that he executed the search 

warrant at 3:15 p.m. but that the warrant was not issued until 

3:50 p.m. Therefore, according to defense counsel, Detective 

Hamner must have searched Newton’s motel room before the 

search warrant was issued. The detective explained that 

Newton’s room was not searched until after the warrant was 
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issued. According to Detective Hamner, he distinctly 

remembered that Detective Melton had a copy of the search 

warrant with him when they searched the motel room. The 

detective further explained that the time on his report was 

incorrect. Thereafter, over Newton’s objection, the trial court 

admitted the evidence found during the search of Newton’s motel 

room.

Also before trial, the trial court granted Newton’s Motion in 

Limine and instructed Detective Hamner that he could only 

testify that he recognized Newton in the Casino Aztar 

surveillance video because Newton was a potential witness in 

another unrelated investigation and they had also met at the local 

library where the detective was an off-duty police officer. Newton 

did not object to the detective’s testimony at trial. However, 

when Detective Melton testified that he recognized Newton in 

the police surveillance video, Newton objected and asked for a 

mistrial. Newton’s counsel told the trial court that an admonition 

would not correct the error. The trial court denied Newton’s 

motion and instructed Detective Melton, as it did Detective 

Hamner pursuant to the terms of Newton’s Motion in Limine, 

that he could only testify that he recognized Newton in the 

surveillance video because Newton was a potential witness in [] 

another unrelated investigation.

At trial, Moll testified that Newton tied his hands tightly behind 

his back with an extension cord and left him on his back with his 

head against the end of the bathtub. Moll[], who initially felt that 

he had no chance of loosening the cord, was subsequently able to 

scoot into the hallway and free himself after being tied up for 

approximately eight hours. When he freed himself, his wrists 

were swollen and hurt and his back hurt. A photograph 

introduced into evidence showed bruised and swollen wrists.
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The jury convicted Newton of burglary as a class A felony, 

robbery as a class B felony, and theft as a class D felony. Newton 

pleaded guilty to being a habitual offender. The trial court 

sentenced him to thirty-five years for the class A felony, 

enhanced by thirty years for being a habitual offender. The court 

also sentenced Newton to twelve years for the class B felony. 

Specifically, the trial court explained at the sentencing hearing 

that it was not enhancing the sentence for the class B felony 

conviction because it did not believe it was appropriate to 

enhance more than one sentence. The court further sentenced 

Newton to two years for the class D felony and ordered the 

sentences to run concurrently for a total executed sentence of 

sixty-five years. Newton appeals.

Newton v. State, No. 82A05-1301-CR-22, slip op. at 1-2 (Ind. Ct. App. Aug. 30, 

2013), trans. denied. 

[3] On direct appeal, Newton presented four issues: (1) whether the trial court 

abused its discretion in failing to suppress evidence of a search that occurred 

prior to the issuance of a search warrant; (2) whether there was sufficient 

evidence to support his convictions for burglary and robbery causing bodily 

injury; (3) whether Newton’s burglary and robbery convictions violated double 

jeopardy principles; and (4) whether the trial court abused its discretion in 

failing to grant a mistrial. A panel of this court rejected three of Newton’s four 

claims, holding: (1) Newton’s argument regarding the suppression of the 

evidence from the search was nothing more than an invitation for the court to 

reweigh the evidence, which the court cannot do; (2) the evidence was sufficient 

to support Newton’s convictions because Moll testified that his back and wrists 

hurt, and a photograph showed Moll’s wrists were bruised and swollen; (3) 
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Detective Melton’s testimony at trial that he recognized Newton in the 

surveillance video was unlikely to have had a probable persuasive effect on the 

jury’s decision and therefore did not warrant a mistrial; and (4) the burglary and 

robbery convictions were in violation of double jeopardy principles because the 

convictions were based on the same bodily injury, and as a result, our court 

reduced the robbery conviction to a Class C felony, reduced the sentence for the 

Class C felony robbery conviction to a four-year advisory sentence, and ordered 

it to run concurrently to the burglary conviction; Id. at 3–5. Newton filed a 

petition to transfer his case to the Indiana Supreme Court, but that court denied 

the petition.

[4] On April 3, 2014, Newton filed a pro se petition for post-conviction relief. In his 

petition, Newton claimed that he was denied the effective assistance of trial 

counsel and appellate counsel. Newton amended his petition four times, each 

time adding more claims of ineffective assistance of counsel. The postconviction court held an evidentiary hearing on August 18 and 23, 2017. On 

November 15, 2017, Newton filed a motion for leave to amend his petition for 

post-conviction relief, which was denied because the post-conviction court had 

already conducted the evidentiary hearing on Newton’s petition. Both parties 

then submitted proposed findings of fact and conclusions of law. On March 18, 

2018, the post-conviction court issued its findings of fact and conclusions of law 

denying Newton’s petition for post-conviction relief. The post-conviction court 

concluded that:
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A review of the affidavit for the search warrant, identified as 

Petitioner’s Exhibit G, does not support Petitioner’s challenge to 

the finding of probable cause. The affidavit includes, but is not 

limited to, information describing the burglary and robbery of the 

victim and the subsequent use of the victim’s debit card taken 

during the burglary at two separate ATM machines. Detective 

Hamner identified Petitioner as the suspect in the video using the 

ATM card. A challenge to the probable cause finding by the 

judicial officer who signed the search warrant would not have 

been successful. Further, there is no evidence that the officers 

were dishonest or reckless in the preparation of the affidavit. 

***

Petitioner argues that if counsel had pursued an interlocutory 

appeal of the Court’s denial of the Motion to Suppress, Detective 

Douglas Hamner’s testimony would not have been considered 

because Detective Hamner did not testify at the suppression 

hearing, but only testified at the trial. However, under Indiana 

Rules of Appellate Procedure, Rule 14, an interlocutory appeal of 

a denial of a motion to suppress is a discretionary appeal. The 

grounds for granting an interlocutory appeal are listed in Rule 

14(B)(1)(c).... 

***

Under Rule 14 of the Indiana Rules of Appellate Procedure, the 

trial court would not have had to grant the request for an 

interlocutory appeal. It is unlikely that trial counsel would have 

been successful even if she had pursued an interlocutory appeal. 

***
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Detective Hamner testified based on his perception of the video[,]

and his testimony was helpful to understand his testimony and 

also helpful to a determination of a fact in issue, that being the 

identity of the suspect in the case. It is unlikely that trial counsel 

would have been successful if she had continued to try to keep 

Detective Hamner’s testimony from being presented to the jury. 

***

[The surveillance technical manager at Casino Aztar]’s testimony 

was based on his experience with the Casino Aztar system and 

based on his personal observations. Therefore, it was proper 

testimony to be presented to the jury. An objection to this 

testimony is unlikely to have been sustained. 

***

The issues that Petitioner argued should have been raised by 

appellate counsel were not more likely to result in reversal or a 

new trial than the issues appellate counsel actually did argue on 

Petitioner’s direct appeal. 

***

As to Petitioner’s argument that appellate counsel should have 

raise[d] insufficiency of the evidence arguments as to the element 

of the ‘breaking’ and the ‘intent to commit a felony’ as required 

for the offense of burglary, the jury can infer from the evidence 

that there was an intent to commit a felony. Petitioner’s use of 

the debit card at two ATM’s is evidence of his intent to commit a 

felony. The jurors could also infer that the suspect of the burglary 

committed a ‘breaking’ because the victim did not let anyone 

inside the residence and had not left any windows or doors open. 

While the description of the suspect by the victim alone would 
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not have been enough for identification purposes, Detective 

Hamner’s identification of Petitioner on the video footage, along 

with the description by the victim, would have been enough 

together to prove identification. 

***

Petitioner’s argument that Detective Melton was coached would 

also fail as an appellate issue. The testimony of Detective Melton 

was controlled and modified in a way to avoid having the jury 

hear about Petitioner previously being a suspect in another case. 

These efforts were made to protect Petitioner from any prejudice 

that might have resulted. 

Appellant’s App. Vol. II, pp. 32–38. Newton now appeals.

Post-Conviction Standard of Review 

[5] Our standard of review of claims that a post-conviction court erred in denying 

relief is well settled. The post-conviction petitioner bears the burden of 

establishing grounds for relief by a preponderance of the evidence. Willoughby v. 

State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. When a petitioner 

appeals the denial of a petition for post-conviction relief, the petitioner stands in 

the position of one appealing from a negative judgment. Id. On appeal, we do 

not reweigh evidence nor judge the credibility of witnesses; therefore, to prevail, 

Newton must show that the evidence in its entirety leads unerringly and 

unmistakably to a conclusion opposite that reached by the post-conviction 

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

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we 
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do not defer to the court's legal conclusions, but the “findings and judgment will 

be reversed only upon a showing of clear error–that which leaves us with a 

definite and firm conviction that a mistake has been made.” Henley v. State, 881 

N.E.2d 639, 644 (Ind. 2008).

Ineffective Assistance of Trial Counsel 

[6] Newton contends that his trial counsel, Barbara Williams (“Williams”), was 

ineffective for several reasons. “[C]ounsel’s performance is presumed effective, 

and a defendant must offer strong and convincing evidence to overcome this 

presumption.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). A claim of 

ineffective assistance of trial counsel requires a showing that: (1) Williams’s 

performance was deficient by falling below an objective standard of 

reasonableness; and (2) that the deficient performance prejudiced Newton such 

that “there is a reasonable probability that, but for William’s unprofessional 

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

Washington, 466 U.S. 668, 694 (1984); Kubsch, 934 N.E.2d at 1147. 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). When 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). Moreover, “[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). We address each of Newton’s claims as to why Williams

was ineffective in turn.
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I. Failure to Properly Challenge the Search of Motel Room

[7] Newton first argues that Williams inadequately challenged the search of the 

motel room during the suppression hearing by failing to object to the lack of 

probable cause to support the search warrant. In order to prevail on a claim of 

ineffective assistance of counsel for failure to object, Newton must show that 

the objections would have been sustained. Kubsch, 934 N.E.2d at 1150. 

“Probable cause to issue a search warrant does not require a demonstration of a

prima facie showing of criminal conduct, nor does it require a demonstration 

that contraband will be found on the premises to be searched. Probable cause to 

issue a search warrant need only show there is a probability of criminal 

activity.” Blalock v. State, 483 N.E.2d 439, 444 (Ind. 1985). The trial court’s 

determination of probable cause is given significant deference. Houser v. State, 

678 N.E.2d 95, 99 (Ind. 1997).

[8] Here, Newton specifically argues that trial counsel was ineffective for failing to 

argue that the search warrant for his motel room was not supported by 

sufficient probable cause and that the officers were dishonest or reckless in 

preparing the affidavit for the search warrant. First, Newton contends that 

Williams should have objected to the finding of probable cause by the trial 

court. However, a review of the affidavit for the search warrant does not 

support Newton’s challenge to the finding of probable cause. Ex. Vol., 

Petitioner’s Exhibit G. The affidavit describes the burglary and robbery 

incidents that occurred and the subsequent use of Moll’s debit card taken during 

the burglary at two separate ATM machines shortly after the incident. Detective 
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Hamner identified Newton as the suspect in the surveillance video using the 

stolen debit card. At the suppression hearing, Williams “agree[d] that there was 

a finding of probable cause made by a judicial officer, and I’m not attacking or 

challenging that in any[]way.” Motion to Suppress/Jury Trial Tr. p. 34. 

Because the search warrant was supported by sufficient probable cause, 

Williams was not deficient for failing to advance this argument at trial. 

[9] Newton next contends during a motion to suppress hearing that the search of 

his motel room was conducted prior to the issuance of a search warrant. 

However, Newton unsuccessfully raised the issue on direct appeal, and 

therefore, he is barred from raising this issue in these post-conviction 

proceedings. Newton, slip op. at 3–4.

[10] Newton also argues that Williams was ineffective for failing to pursue an 

interlocutory appeal of the court’s denial of the motion to suppress. However, 

under Ind. Appellate Rule 14, an interlocutory appeal of a denial of a motion to 

suppress is a discretionary appeal. Therefore, under Rule 14, the trial court 

would not have had to grant the request for an interlocutory appeal. It is not 

likely that Williams would have been successful even if she had pursued an 

interlocutory appeal, and therefore, Newton was not prejudiced. 

II. Failure to Object to Evidence 

[11] Newton next argues that Williams was ineffective at trial for failing to object to 

several pieces of evidence during trial. Our supreme court has explained that 

“in order to prevail on a claim of ineffective assistance due to the failure to 
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object, the defendant must show an objection would have been sustained if 

made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007). And if the objection 

would have been sustained, Newton still must show that but for Williams’s

failure to object, the result of his trial would have been different. Id. at 152.

A. Testimony About Evidence Not Entered

[12] Newton first argues that Williams was ineffective at trial for failing to raise an 

objection to witness testimony that assumed facts that were not entered into 

evidence. Newton contends that State’s Exhibit 28 was improperly admitted. 

State’s Exhibit 28 was a disc containing video footage from Casino Aztar which 

Detective Melton obtained from Casino Aztar. Detective Melton had given two 

discs from Casino Aztar to Detective Walker. Detective Walker had prepared 

another disc that had a QuickTime video file of the footage, which was 

identified and admitted as State’s Exhibit 28. The original disc was never placed 

into evidence as an exhibit. Adam Krewson, the surveillance technical manager 

at Casino Aztar who provided Detective Melton with the original disc, testified 

that State’s Exhibit 28 was an accurate depiction of the events that had 

occurred. The jury was shown the edited version, and the result of the trial 

would have been the same if the jury was shown the entire video from the 

original disc provided to Detective Melton by Krewson. Newton has failed to 

show how the edited version of the video prejudiced him and thus has not 

established that the unedited version of the video contains evidence that would 

have affected the outcome of his trial. 
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B. Inconsistent Testimony of Witness 

[13] Newton also argues that Williams erred in failing to object to the inconsistent 

testimony of Krewson. At trial, the prosecutor attempted to play the 

surveillance video, State’s Exhibit 28, on the Intellex1 player on the disk. 

However, the prosecutor was unable to play the video on the Intellex player 

and instead used a different application on the prosecutor’s computer to play 

the video. As a result of using this different application, the time stamp on the 

video changed to four hours later than the actual time. The actual time was 

9:31:04, and the time stamp on the video shown at trial stated that the video 

was recording at 13:31:04. Krewson testified at trial and explained why the time 

stamp was off by a couple of hours. 

Well I’ve seen this in the past, there’s a conflict of versions 

between the player embedded on the disk, and the solely installed 

[I]ntellex players, and that is that the time stamp can be off a 

little bit, right at a couple of hours, but the minutes remain the 

same. 

Motion to Suppress/Jury Trial Tr. pp. 211.

[14] Newton contends that a lay person would not be competent to authenticate the 

accuracy of the time stamp, and thus, Williams was ineffective for failing to 

1 The Intellex player was a proprietary player that Casino Aztar used. Motion to Suppress/Jury Trial Tr. pp. 

197; PCR Tr. pp. 99–100). A proprietary player “means you have to have that player to play that file.” PCR 

Tr. p. 100. 
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object to Krewson’s testimony about the time stamp discrepancy. We disagree. 

Newton has not demonstrated any prejudice by the showing of the Casino 

Aztar surveillance footage that displayed an inaccurate time stamp. The jury 

was presented with Krewson’s testimony as to why the time stamp was off by a

couple of hours. Additionally, surveillance footage from Old National Bank 

was also played for the jury, in which Newton could be more clearly identified. 

Both Detectives Melton and Hamner identified Newton in the Old National 

Bank video footage, and the clothing that Newton was wearing in the video was 

later found in Newton’s hotel room. The jury was free to examine whether 

Newton was the person in the surveillance video as eight separate cameras 

captured Newton. Therefore, there was substantial independent evidence of 

Newton’s guilt, and it is unlikely Newton was prejudiced by the time stamp 

discrepancy on Casino Aztar’s surveillance video.

Ineffective Assistance of Appellate Counsel 

[15] Newton also claims that his appellate counsel, Jesse R. Poag (“Poag”), was 

constitutionally ineffective. “Ineffective assistance is very rarely found in cases 

where a defendant asserts that appellate counsel failed to raise an issue on 

appeal.” Overstreet, 877 N.E.2d at 166. “One reason for this is that the decision 

of what issues to raise is one of the most important decisions to be made by 

appellate counsel.” Id. at 167. Indeed, our supreme court has warned that we 

“should be particularly sensitive to the need for separating the wheat from the 

chaff in appellate advocacy,” and we “should not find deficient performance 

when counsel's choice of some issues over others was reasonable in light of the 
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facts of the case and the precedent available to counsel when that choice was 

made.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006).

[16] When we review claims of ineffective assistance of appellate counsel, we use 

the same standard applied to claims of ineffective assistance of trial counsel, 

i.e., Newton must show that Poag’s performance fell below an objective 

standard of reasonableness and that there is a reasonable probability that, but 

for Poag’s deficient performance, the result of the proceeding would have been 

different. Manzano v. State, 12 N.E.3d 321, 329 (Ind. Ct. App. 2014) (citing 

Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007)), trans. denied. Newton 

contends that Poag was ineffective by not raising five issues on appeal, and we 

address each in turn.

[17] Newton argues that Poag was ineffective because he failed to raise viable issues 

on appeal that presented stronger arguments, which were significant and 

obvious on the face of the record. Newton specifically contends that Poag was 

ineffective for failing to argue on appeal that State’s Exhibit 28 was improperly 

admitted. Krewson gave Detective Melton a disc that contained video footage 

from the Aztar Casino, and Detective Melton handed the disc to Detective 

Walker. Detective Walker prepared another disc that had a QuickTime video 

file of the footage, which was identified and admitted as State’s Exhibit 28. 

However, the original disc was never placed into evidence as an exhibit. The 

time stamp on the disc was inaccurate. Krewson testified that State’s Exhibit 28 

was digitally the same as the disc he had provided to Detective Melton. State’s 

Exhibit 28 was properly admitted and considered by the jury. Any challenge on 
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appeal to the admission of State’s Exhibit 28 would not have been successful. 

Even if the jury considered the video footage with the incorrect time stamp, 

there is a reasonable probability that the result of the trial would have been the 

same. Therefore, Newton was not prejudiced as a result of the inaccurate time 

stamp on the disc and any argument to the contrary is meritless.

[18] Next, Newton contends that Poag was ineffective for failing to argue that the 

State never proved that Newton used some physical act to gain entry into 

Moll’s residence, which is necessary to prove the breaking element of Count I 

burglary resulting in bodily injury. Moll testified that Newton likely broke into 

his house by prying the window open. See Wilson v. State, 94 N.E.3d 312, 323 

(Ind. Ct. App. 2018) (“Using even the slightest force to gain unauthorized 

entry, which can include opening an unlocked door or pushing a door that is 

slightly ajar, satisfies the breaking element of the crime. Circumstantial 

evidence alone can prove the occurrence of a breaking.”). Moll did not let 

Newton inside the residence and had not left any windows or doors open. 

There was sufficient evidence presented to the jury to infer a “breaking” had 

occurred, and therefore, appellate counsel was not ineffective for failing to raise 

this argument in Newton’s direct appeal.

[19] Further, Newton argues that Poag was ineffective when he failed to raise the 

issue that the State never provided evidence of Newton’s intent to commit a 

felony, specifically that Newton took or intended to take property from Moll. 

Newton made multiple demands for money from Moll at gunpoint. Newton 

checked for money inside a cabinet and behind the refrigerator and stove and 
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did not find any money. Newton then stole two debit cards from Moll’s wallet, 

demanded the PINs, and used them shortly after. The jury could infer from the 

evidence that there was an intent to commit a felony. Because the evidence was 

sufficient to prove the breaking and intent to commit a felony elements for 

burglary, Poag was not ineffective for failing to raise these arguments in 

Newton’s direct appeal. 

[20] Newton also contends that Poag was ineffective when he failed to argue that 

Moll could not identify Newton as the person who entered the residence and 

committed the charged crimes since there was a difference between Moll’s 

description and Newton’s actual physical appearance. This argument does not 

have merit because Newton was identifiable in the Old National Bank 

surveillance footage. Detective Hamner identified the person on the video 

footage obtaining money from the ATM using Moll’s stolen debit cards as 

Newton. This coupled with the fact that the clothes that Newton wore in the 

surveillance footage were later discovered in Newton’s hotel room were enough 

together to prove identification. Therefore, Newton has not established that he 

was prejudiced by Poag’s failure to present this issue to our court on direct 

appeal. 

[21] Lastly, Newton argues that Poag was ineffective for failing to raise the claim 

that Detective Melton was coached to testify that he had knowledge of 

Newton’s description from a previous case in which Newton was a potential 

suspect. However, the testimony of Detective Melton was controlled and 

modified in a way to avoid having the jury hear about Newton previously being 
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a suspect in another case. The trial court, upon both parties’ agreement, 

instructed Detective Hamner and Melton as follows:

[T]he information that we do not want to come before the jury or 

the Court is instructing you not to bring before the jury is any 

comments about any prior criminal offense that the defendant 

may or may not have been involved in, and also the fact that the 

specific offense that you were investigating or part of the 

investigation, was his son, Mr. Phaoah Newton’s very serious 

offense that we had here. 

Motion to Suppress/Jury Trial Tr. pp. 95–96. These efforts were made to 

protect Newton from any prejudice that might have resulted. Furthermore, 

Newton’s counsel specifically agreed and wanted Detective Hamner to testify 

the way he did in order to avoid an appearance of impropriety. Newton’s 

argument to the contrary is invited error. See Booher v. State, 773 N.E.2d 814, 

822 (Ind. 2002) (“A party may not invite error, then later argue that the error 

supports reversal, because error invited by the complaining party is not 

reversible error”). 

[22] For these reasons, Poag’s decision not to raise the issues Newton thought were 

the stronger arguments was not deficient. Accordingly, the post-conviction 

court properly concluded that Newton was not denied the effective assistance of 

appellate counsel. 

Conclusion 

[23] Based on the facts and circumstances before us, the post-conviction court did 

not clearly err when it rejected Newton’s claims of ineffective assistance of trial 
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counsel and appellate counsel. Accordingly, we affirm the judgment of the postconviction court denying Newton’s petition for post-conviction relief. 

Vaidik, C.J., and Crone, J., concur.