Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precede nt 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 AP PELLANT : ATTORNEYS FOR APPELLEE : JESSE R. POAG GREGORY F. ZOELLER Newburgh , Indiana Attorney General of Indiana
KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

WIL LIE G. MAFFETT , ) ) Appell ant

- Defendant , ) ) vs. ) No. 82A01

- 1212

- CR

- 585 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM VANDERBURGH SUPERIOR COURT The Honora ble Mary Margaret Lloyd , Judge Cause No. 82D02

- 1208

- FD

- 919

August 15, 2013
MEM ORANDUM DECISION
- NOT FOR PUBLICATION MAY, Judge2

Willie G. Maffett appeals his conviction of C lass D felony theft. 1 He presents one issue for review, which we restate as whether h is trial counsel was ineffective . We affirm.

FACTS AND PROCEDURAL HIST ORY While at a Family Dollar store , Maffett hid four bottles of Tide laundry detergent in his pants. Michael Embrey, a store employee, confronted Maffett, called the police to report the theft, and insisted Maffett return the Tide. Maffett returned the Tide, left the store, and
was arrested

. There was conflicting evidence as to whether Embrey’s encounter with Maffett was captured by surveillance cameras. Embrey testified he confronted Maffett in an area not covered by surveillance. T he probable cause affidavit indicated the confrontation occurred at
the front of the store where surveillance cameras would have captured the incident. Maffett’s trial counsel argued the State’s failure to introduce the surveillance footage precluded a finding Maffett was guilty beyond a reasonable doubt. Between his conviction and sentencing, Maffett, acting pro se , filed a motion for new
trial alleging his trial counsel was ineffective because she did not investigate the surveillance
tape

. Maffett contend ed th ere were video surveillance cameras throughout the store, but he
did not present evidence to support th at assertion. The trial court denied his motion

. DISCUSSION AND DECISION We begin our review of a claim of ineffective assistance o f counsel with a strong
pre sumption “that counsel rendered adequate assistance and made all significant decisions in

1 Ind. Code § 35

- 43

- 4

- 2(a).3

the exercise of reasonable professional judgment.” Ward v. State , 969 N.E.2d 46, 51 (Ind. 2012) (citation omitted)

. Trial counsel has wide latitude in selecting tri al strategy and tactics, which will be subjected to deferential review. Id

. “[ A ] defendant must offer strong and convincing evidence to overcome this presumption. ” Saylor v. State , 765 N.E.2d 535, 549 (Ind. 2002).
A n ineffective assistance challenge r equires a defendant t o establish both deficient performance and resulting prejudice. Pontius v. State , 930 N.E.2d 1212, 1219 (Ind. Ct. App. 2010), trans. denied

. P erformance is deficient when trial counsel’s representation f a ll s below an objective standa rd of reasonableness causing errors sufficiently serious to amount to a denial of the defendant’s Sixth Amendment right to counsel. Wesley v. State , 788 N.E.2d 1247, 1252 (Ind. 2003) . Prejudice is established when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would be different.” Id

. If defendant does not establish prejudice, we need not evaluate trial counsel’s performance.
Pontius , 930 N.E.2d at 1219

. Demonstrating ineffective assistan ce of counsel often requires “going beyond the trial record to show what the investigation, if undertaken, would have produced,” Slusher v. State , 823 N.E.2d 1219, 1223 (Ind. Ct. App. 2005), because the prejudice prong is satisfied only
when there is a re asonable probability the outcome would have been affected. Id . However,4

when such a challenge is raised on direct appeal , 2 we are limited to a review of the trial
record

. Pontius , 930 N.E.2d at 1219

. Maffett does not have access to the alleged surveil lance tape he asserts trial counsel
should have obtained and presented at trial , and w e are left to speculate as to whether any such tape exists or what it contains. 3 As Maffett cannot show the tape would have changed the outcome of his trial, he is unabl e to meet the showing of prejudice required for us to hold
trial counsel was ineffective.
CONCLUSION
Maffett has not demonstrated prejudice because he has not shown the contents of the surveillance tape, if one existed at all, would have affected the ou tcome of his trial

. Accordingly, he did not demonstrate he received ineffective assistance from his trial counsel,
and w e affirm.
Affirmed. BAKER, J., and MATHIAS, J., concur.

2 Maffett’s direct appeal of his claim of ineffect ive assistance of counsel precludes raising the issue again if he pursues post

- conviction relief. See Conner v. State , 711 N.E.2d 1238, 1244 (Ind. 1999) (“when this Court decides an issue on direct appeal, the doctrine of res judicata applies, thereby pre cluding its review in post

conviction proceedings”). 3 As noted above, Embry testified th ere was no surveillance tape.