Court of Appeals of Indiana | Memorandum Decision 82A05-1709-PC-2123 | February 28, 2018 Page 1 of 13

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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Katherine Province

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dennis Ray Smith,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

February 28, 2018

Court of Appeals Case No.

82A05-1709-PC-2123

Appeal from the Vanderburgh 

Circuit Court

The Honorable David D. Kiely, 

Judge

The Honorable Kelli E. Fink, 

Magistrate

Trial Court Cause No.

82C01-1308-PC-23

Najam, Judge.
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Statement of the Case

[1] Dennis Ray Smith appeals from the post-conviction court’s denial of his 

petition for post-conviction relief. Smith raises a single issue for our review, 

namely, whether he was denied the effective assistance of trial counsel. We 

affirm.

Facts and Procedural History

[2] The facts underlying Smith’s convictions were stated by this court on direct 

appeal:

Smith was married to Gina, M.A.’s mother, for fourteen years. 

When M.A. was four or five years old, Smith sexually molested 

her on two occasions after Gina had left the house. M.A. did not 

have complete recollection of the second occasion but stated that 

she could “remember the pain . . . [i]n [her] vagina.” Tr. p. 41. 

M.A. did not tell anyone about the molestation for several years 

because she was afraid of Smith.

On March 22, 2011, M.A. told Kelly Schwent, her mother’s best 

friend, and Kelly’s husband, Dan, about the molestations. Kelly 

took M.A. back to her home to inform Gina of the molestations. 

At the age of seventeen, M.A. had finally decided to reveal the 

fact that Smith had sexually molested her because she believed 

that she could handle the situation. Moreover, Smith and Gina 

had recently separated, and Smith was no longer staying in the 

family residence.

After Gina was informed that her daughter had been sexually 

molested by Smith, Gina, Kelly, and M.A., drove to Berry 

Plastics in Evansville, where Smith was employed, and 

confronted him in the parking lot. Smith denied the allegations 

while asking what he could do to make this go away. At some 
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point, Gina hit Smith. Gina looked at Smith and gave him an 

ultimatum: Smith could either confront Gina’s father or follow 

the three women to the police station. Smith chose the latter.

After contacting the police, M.A., Gina, and Kelly went to 

Holly’s House, where they were interviewed by Detective 

Nathan Schroer of the Evansville Police Department. Later that 

night, and into the next morning, Detective Schroer advised 

Smith of his Miranda[] rights, and Smith signed a waiver of those 

rights that was dated March 23, 2011.

Detective Schroer conducted a recorded interview with Smith. 

Relevant portions of that interview follow:

Q . . . I’m going to bury you underneath this case 

because I have no choice, I mean if you put yourself 

in my shoes, you would have to, you know, because 

you would leave here thinking, that guy doesn’t care, 

why shouldn’t I, or we talk it out and we go from 

there.

A Okay, but what happens tonight, I mean what 

happens if I say I want a lawyer, do I get one in here 

now then we talk about it?

Q No, we wouldn’t get one in here now, I mean they 

don’t come out at this time of the night, I’ll tell you 

exactly what happens, if you were to go down that 

route they would go, and you’ve got to remember, 

here’s what I’m telling you, if you went away for the 

rest of your life, he would say, oh don’t talk to them, 

don’t talk to them, that’s what he would say, I’m 

being honest with you, you know, and I’d say that 

that’s absolutely fine, I’ve sent a lot of people away 

for a lot of time because I was able to show a jury 

that they were guilty and then the jury wants to 

know, well what did they have to say about it, . . .
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* * *

A Am I looking at life or something?

Q No, you’re not looking at life, no you’re not 

looking at life, you have no criminal history, I don’t, 

I don’t see anything like that. . . .

* * *

Q . . . She said that it didn’t happen more than two 

times, did it happen more than two times?

A (inaudible)

Q Okay, how many different locations?

A One.

* * *

Q . . . are you saying it was your finger that touched 

her vagina?

A It was my finger.

Tr. p. 138-39; 146; 149; 165.

On March 28, 2011, the State charged Smith with: Count I, class 

A felony child molesting by sexual intercourse and Count II, 

class A felony child molesting by sexual intercourse. On June 7, 

2011, the State added Count III, class A felony child molesting 

by sexual deviate conduct and Count IV, class A felony child 

molesting by sexual deviate conduct. On February 8, 2012, the 

State added Count V, class A felony child molesting by sexual 

deviate conduct.
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On February 22, 2012, Smith filed a motion to suppress “a 

portion of the statement of the Defendant taken by audio/video 

recording by Detective Nathan Sch[r]oer.” Appellant’s App. p. 

29. Smith alleged that his statement was acquired in violation of 

his right to counsel under the Fifth Amendment to the United 

States Constitution and the Indiana Constitution. A hearing on 

the motion to suppress was held on the same date, and the trial 

court denied the motion.

Smith’s jury trial commenced the next day, February 23, 2012. 

At trial, when the State offered the recorded interview between 

Smith and Detective Schroer into evidence as State’s Exhibit D, 

Defense Counsel stated that there was no objection, and the trial 

court admitted the exhibit. However, immediately after the 

exhibit was admitted without objection, Defense Counsel stated 

in a bench conference that he was objecting to the exhibit on 

grounds that the motion to suppress “should have been granted, 

however, the Court denied that Motion.” Tr. p. 106. The trial 

court overruled the objection.

The interview was played for the jury. Following deliberations, 

the jury returned a verdict of guilty on Counts I-IV and not guilty 

on Count V.

The trial court held a sentencing hearing on March 23, 2012, 

where it sentenced Smith to thirty years imprisonment on each of 

the four counts to be served concurrently, for a total executed 

term of thirty years.

Smith v. State, 983 N.E.2d 226, 228-30 (Ind. Ct. App. 2013) (“Smith I”), trans. 

denied. On direct appeal, Smith alleged that his statement was inadmissible at 

trial because it was “coerced in violation of the Fifth Amendment to the United 

States Constitution” and that two of his convictions violated Indiana’s 

prohibition against double jeopardy. Id. at 230. We rejected Smith’s Fifth 
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Amendment claim, but we reversed two of his convictions, Counts III and IV, 

on double jeopardy grounds.

[3] On August 23, 2013, Smith filed a petition for post-conviction relief, and he 

filed amended petitions on December 27, 2016, and January 17, 2017. Smith 

alleged that he had been denied the effective assistance of trial counsel because 

his counsel: did not move to redact portions of his videotaped statement; did 

not object to portions of his videotaped statement; and did not object to the 

prosecutor’s comments during closing arguments regarding Smith’s postMiranda silence. Following an evidentiary hearing, the post-conviction court 

denied Smith’s petition. This appeal ensued.

Discussion and Decision

[4] Smith appeals the post-conviction court’s denial of his petition for postconviction relief. Our standard of review is clear:

The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004) 

(citations omitted). When appealing the denial of postconviction relief, the petitioner stands in the position of one 

appealing from a negative judgment. Id. To prevail on appeal 

from the denial of post-conviction relief, a petitioner must show 

that the evidence as a whole leads unerringly and unmistakably 

to a conclusion opposite that reached by the post-conviction 

court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). 

Further, the post-conviction court in this case made findings of 

fact and conclusions of law in accordance with Indiana PostConviction Rule 1(6). Although we do not defer to the postconviction court’s legal conclusions, “[a] post-conviction court’s 
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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.” Ben-Yisrayl v. State, 

729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).

Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to 

Campbell).

[5] Smith contends that he received ineffective assistance from his trial counsel, 

Jake Warrum.

When evaluating an ineffective assistance of counsel claim, we 

apply the two-part test articulated in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v. 

State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first 

prong, “the defendant must show deficient performance: 

representation that fell below an objective standard of 

reasonableness, committing errors so serious that the defendant 

did not have the ‘counsel’ guaranteed by the Sixth Amendment.” 

McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing 

Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the 

second prong, “the defendant must show prejudice: a reasonable 

probability (i.e. a probability sufficient to undermine confidence 

in the outcome) that, but for counsel’s errors, the result of the 

proceeding would have been different.” Id. (citing Strickland, 466 

U.S. at 694, 104 S. Ct. 2052).

Id. at 274.

There is a strong presumption that counsel rendered adequate 

assistance and made all significant decisions in the exercise of 

reasonable professional judgment. Counsel is afforded 

considerable discretion in choosing strategy and tactics, and these 

decisions are entitled to deferential review. Isolated mistakes, 
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poor strategy, inexperience, and instances of bad judgment do 

not necessarily render representation ineffective.

Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted). The two 

prongs of the Strickland test are separate and independent inquiries. Williams v. 

State, 706 N.E.2d 149, 154 (Ind. 1999). “Thus, ‘[i]f it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that 

course should be followed.’” Id. (quoting Strickland, 466 U.S. at 697, 104 S. Ct. 

2052).

[6] Smith alleges that Warrum’s representation was deficient with respect to his 

handling of several instances of “post-Miranda silence” during Smith’s 

videotaped statement admitted at trial. Appellant’s Br. at 13. In particular, 

Smith maintains that his videotaped statement contains ten instances where he 

did not respond to questions from Detective Schroer. In his post-conviction 

petition, Smith argued that Warrum should have moved to redact those 

portions of the interview or should have objected to those portions of the 

interview. Smith also argued that Warrum should have objected to the 

prosecutor’s references to Smith’s post-Miranda silence during his closing 

argument and rebuttal. The prosecutor stated as follows:

You know they say sometimes a picture is worth a thousand 

words, and we had a couple [of] pictures, but I’ve also hear[d] 

sometimes that silence can be deafening, and I don’t know how 

many times I counted during the course of Detective S[c]hroer’s 

interview with the defendant when he asked point blank if [M.A.] 

were lying when there was nothing more than an awkward 

silence and no response at all from the defendant.
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* * *

You saw the interview, you saw, you are allowed to take into 

consideration the way that this person looked [i]n that interview, 

and the silences in response, is she lying . . . . 

Trial Tr. Vol. III at 222, 240.

[7] Smith’s contentions on appeal rest on the United States Supreme Court’s 

opinion in Doyle v. Ohio, 426 U.S. 610 (1976), which prohibits the State’s use of

a defendant’s post-Miranda silence to impeach an exculpatory story told for the 

first time at trial. See Barton v. State, 936 N.E.2d 842, 850 (Ind. Ct. App. 2010), 

trans. denied. In particular, Smith contends that,

[a]lthough [he] was not in custody when he was interviewed by 

Detective Schroer and responded to many of the Detective’s 

questions, his silence in response to certain questions is protected 

under the Due Process Clause and Doyle because he was advised 

of his Miranda rights prior to questioning. The State’s use of 

Smith’s silence as evidence of guilt was a violation of due 

process.

Appellant’s Br. at 18. Indeed, as stated by the United States Court of Appeals 

for the Seventh Circuit,

[i]f a suspect does speak, he has not forever waived his right to be 

silent. Miranda allows the suspect to reassert his right to remain 

silent at any time during the custodial interrogation. Miranda v. 

Arizona, 384 U.S. 436, 445, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 

694 (1966). Thus[,] a suspect may speak to the agents, reassert 

his right to remain silent or refuse to answer certain questions, and 

still be confident that Doyle will prevent the prosecution from 
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using his silence against him. United States v. Canterbury, 985 F.2d 

483, 486 (10th Cir. 1993).

United States v. Scott, 47 F.3d 904, 907 (7th Cir. 1995) (emphasis added).

[8] However, the State maintains that Smith “fails to meet his burden to show that 

any of the 10 instances to which he points during his interview qualify as 

‘silence’ within the meaning of Doyle.” Appellee’s Br. at 14. The State 

characterizes those moments of silence as “natural pauses between questions[.]” 

Id. Further, the State avers that, “[w]here a defendant does not exercise his 

Miranda rights but instead makes a statement to the police, the defendant 

cannot thereafter claim a Doyle violation.” Id. at 16.

[9] In support of its contention on this issue, the State cites to our Supreme Court’s 

opinions in Trice v. State, 766 N.E.2d 1180 (Ind. 2002), and Sylvester v. State, 698 

N.E.2d 1126 (Ind. 1998), but neither of those cases is on all fours with the 

instant case. Trice addresses the implications of Doyle in the context of “crossexamination that merely inquires into prior inconsistent statements [by a 

defendant].’” 766 N.E.2d at 1184 (emphasis added). In Sylvester, the Court 

stated, “we find no Doyle violation here since [the defendant] did not exercise 

his Miranda right. Quite simply, defendant did not remain silent.” 698 N.E.2d 

at 1130. That certainly appears to suggest that, once a defendant waives his 

right to remain silent, he may not later claim a Doyle violation. But the 

circumstances of the alleged “silence” in Sylvester are different than those here. 

In particular, the court stated, “[w]here a defendant chooses to fabricate a story, 
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he has not remained silent and cannot claim a Doyle violation,” and “that 

defendant did not tell the police where his wife’s body was does not mean that 

he remained silent in the Doyle sense.” Id. at 1130 n.5, 1131. In other words, 

the alleged Doyle violation in Sylvester did not involve the State’s use of the 

defendant’s silent refusal to answer questions to impeach him.

[10] Here, in contrast, in its closing argument and rebuttal, the State specifically 

referred to Smith’s “silence” in the face of questions regarding whether M.A. 

had lied about the molestations. That would seem to squarely implicate 

Smith’s protections under Doyle. But we need not decide whether trial 

counsel’s failure to object under Doyle fell below an objective standard of 

reasonableness because an alleged Doyle violation is subject to a harmless error 

analysis. See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009). In 

Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), our Supreme Court set out a 

five-part test to determine whether a Doyle violation is harmless: (1) the use to 

which the prosecution puts the post-arrest silence; (2) who elected to pursue the 

line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the 

intensity and frequency of the reference; and (5) the availability to the trial 

judge of an opportunity to grant a motion for mistrial or to give curative 

instructions. Here, while three of the elements of the Bieghler test would 

mitigate against finding harmless error, the other two elements are satisfied and 

weigh heavily towards holding the error to be harmless.

[11] In particular, the quantum of evidence of Smith’s guilt is substantial. In 

addition to M.A.’s trial testimony that, on two occasions, Smith penetrated her 
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vagina with his penis, M.A.’s mother and aunt both testified that, when they 

confronted Smith about the allegations, he did not deny them but asked M.A.’s 

mother how to “make this go away.” Id. at 73. During his interview with 

Detective Schroer, Smith corroborated M.A.’s testimony that Smith had carried 

her up the stairs and that he had molested her in a bedroom. And Smith 

admitted to Detective Schroer that he had pulled up M.A.’s shirt and fondled 

her breasts and that he had pulled down M.A.’s pants and touched her vagina 

with his finger. Thus, Smith admitted to facts that supported a Class A felony 

under Indiana Code Section 35-42-4-3 (1999). Smith also stated that he was 

“sorry for what [he] did to [M.A.]” Trial Tr. Vol. III at 160. Finally, the 

prosecutor made only two passing references to Smith’s silence in the face of 

questions during the interview, and, thus, neither the intensity nor frequency of 

the references is significant.1

[12] We hold that a Doyle violation, if any, was harmless. Accordingly, Smith 

cannot show that he was prejudiced by his trial counsel’s alleged deficient 

performance, i.e. he cannot show a reasonable probability that, but for 

counsel’s errors, the result of the proceeding would have been different. The 

 

1

 With respect to Smith’s contention that Warrum should have moved to redact the silences from the 

interview or should have objected to the silences, Smith does not direct us to any relevant authority to show 

that such a motion would have been granted or that such objections would have been sustained. A Doyle

violation occurs when the State uses a defendant’s post-Miranda silence to impeach a defendant. See Barton, 

936 N.E.2d at 850. Here, the mere introduction into evidence of Smith’s complete interview with Detective 

Schroer, including Smith’s failure to respond to ten questions, is not equivalent to the State’s use of those 

moments of silence to impeach Smith at trial.
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post-conviction court did not err when it concluded that Smith was not denied 

the effective assistance of trial counsel.

[13] Affirmed.

Mathias, J., and Barnes, J., concur.