ATTORNEYS FOR APPELLANT			ATTORNEYS FOR APPELLEE

Susan K. Carpenter					Jeffrey A. Modisett

Public Defender of Indiana				Attorney General of Indiana

David P. Freund					Rosemary L. Borek

Deputy Public Defender				Deputy Attorney General

Indianapolis, Indiana					Indianapolis, Indiana

In The

INDIANA SUPREME COURT

DONNIE CHILDERS,				)	

		Defendant-Appellant,		)			

							)

		v.					)	84S00-9711-CR-625

							)					 STATE OF INDIANA,				)

		Plaintiff-Appellee.			)

                          ________________________________________________  

APPEAL FROM VIGO SUPERIOR COURT

The Honorable Michael H. Eldred, Judge

Cause No. 84D01-9610-CF-307

                         _________________________________________________

On Direct Appeal

November 19, 1999

DICKSON, Justice

	The defendant, Donnie Childers, appeals his conviction for the murder1 of three- year-old Wesley Washburn.  He claims three errors, which we reorder and discuss as

follows:  (1) insufficient evidence; (2) denial of his right to counsel; and (3) an erroneous instruction.

	Sufficiency of the Evidence

	The defendant was charged with "knowingly" killing Wesley Washburn by

inflicting blunt force trauma.2  "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so."  Ind. Code § 35-41-2-2 (1993).  See Brown v. State, 703 N.E.2d 1010, 1021(Ind. 1998) ("The trial court could reasonably determine that by inflicting over twenty wounds Brown acted

'knowing' that his actions could produce death."); Horne v. State, 445 N.E.2d 976, 979 (Ind. 1983) ("[A]n act is done 'knowingly' or 'purposely' if it is willed, is the product of a

conscious design, intent or plan that it be done, and is done with an awareness of the

probable consequences.").

	The defendant now contends that the evidence was insufficient to prove that the

defendant was aware of a high probability that his actions would result in Wesley's death. 

In reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge

the credibility of witnesses; rather, we consider only the evidence that supports the

verdict and draw all reasonable inferences from that evidence.  Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999); Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999).  We will affirm the conviction if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable jury to find the defendant guilty beyond a

reasonable doubt.  Riley, 711 N.E.2d at 494; Jackson, 709 N.E.2d at 329.  In deciding whether a defendant was aware of the high probability that his actions would result in the

death of the victim, we have held that the duration and brutality of a defendant's actions,

and the relative strengths and sizes of a defendant and victim, may be considered. 

Anderson v. State, 681 N.E.2d 703, 708 (Ind. 1997); Gibson v. State, 515 N.E.2d 492, 496-97 (Ind. 1987).

	The evidence favorable to the judgment is as follows.  The defendant and Wesley's

mother were living together in the defendant's house at the time.  While Wesley's mother

was away from the house from the evening of Friday, October 4, 1996, until the

afternoon of Sunday, October 6, 1996, the defendant, an adult, was left to care for

Wesley, a three-year-old child.  When Wesley's mother left on Friday, Wesley was

healthy, and his mother had not noticed any injuries to him.  On Saturday night, Wesley's

sister awoke and heard the defendant talking to Wesley in the bathroom and heard the

defendant "spanking" Wesley.  Record at 624.  The defendant's nephew heard the

defendant yelling loudly at Wesley and Wesley crying loudly.  The defendant admitted

that Wesley woke him in the middle of the night to tell him that he had a bowel

movement in his pants and that the defendant then put Wesley "across his lap and

whipped" him.  Record at 635.  The defendant also admitted that, shortly after this,

Wesley got up and vomited two or three times.  The defendant's nephew testified that on

Sunday morning, when he woke Wesley to go to the bathroom, Wesley was holding his head "like it hurt."  Record at 600.  Wesley slept in bed nearly all day Sunday.

	When Wesley's mother arrived home Sunday afternoon, she ran an errand and then

checked on Wesley.  She found him with swelling and bruising around his right eye, his

right ear, and on his face.  Additionally, his arms and legs were stiff and turned outward

at awkward angles, and his eyes were "fluttering" and "rolling back in his head."  Record

at 445.  When she could not wake Wesley, she called 911, and Wesley was taken to the

hospital.  At the hospital, the doctors discovered that he suffered from a fractured skull

and a right front temporal subdural hematoma, a condition where blood collects between

the skull and the brain, causing significant pressure on the brain.  Wesley was transported

to Riley Hospital for Children, where emergency surgery was performed.  Several days

later, Wesley died as a result of the hematoma.

	Dr. John Pless, the forensic pathologist who conducted Wesley's autopsy,

determined that the cause of death was "blunt force injury of the head and brain."  Record

at 733.  Dr. Pless provided the following testimony regarding the various injuries to

Wesley's head, internal organs, back, and buttocks.  As to the head injuries that ultimately

caused the fatal hematoma, Wesley was struck in the head two separate times, and one of

the blows fractured Wesley's skull.  Dr. Pless testified that much more force would be

required to fracture a child's skull than an adult's skull because a child's skull is much

more resilient.  The injury was caused by a rounded or smooth object, consistent with a

hand or fist.  When a child suffers a head injury like the one Wesley suffered, there might

be an initial recovery or "lucid interval" where the child might be able to move around, but any activity after that interval would be unlikely.  The observations of Wesley's

mother concerning the awkward position of his arms and his "fluttering" eyes suggested

that Wesley was having a seizure, which would have been caused by the injury to his

brain.  The doctor observed bruises and blunt force injury to Wesley's back, and these

could have been caused by a hand or fist.  A "linear patterned injury" was present on

Wesley's buttocks, which is consistent with that produced by the fingers on a hand. 

Record at 723.  Wesley also had extensive bruising to his liver, pancreas, spleen,

stomach, and kidney, and the bruising, only a few days old, was likely the result of two or

three blows to the abdomen.  In Dr. Pless's opinion, Wesley could not have injured

himself in this manner; rather, these were "non-accidental injuries."  Record at 732. 

Wesley sustained the head injuries when his head was stationary, and thus they were not

sustained as a result of a fall or other accident in which Wesley's head would have been

moving at the time of the impact.

	Two other health professionals testified.  Kay Leach, a certified emergency nurse

who participated in Wesley's initial treatment, testified that bruises found on Wesley's

back appeared to be less than twenty-four hours old.  Also, Dr. Roberta Hibbard, a doctor

specializing in pediatric care and child abuse, examined Wesley the day after he had

arrived and undergone surgery at Riley Hospital.  She testified that Wesley's numerous

injuries were not the type that Wesley could have caused to himself or that would have

been caused by an accident; rather, they appeared to be intentional.  Dr. Hibbard noted

bruising and scraping on Wesley's arm that was consistent with being grabbed by a hand, struck by a hand, and scraped by fingernails.  She also stated that "all of the bruises

looked to me at the time I saw him to be within a few days old."  Record at 779.

	In this case, the probative evidence supporting the verdict and the reasonable

inferences drawn from that evidence are substantial.  The evidence tends to establish that

Wesley was healthy and without noticeable injury Friday afternoon.  The defendant, an

adult, struck Wesley, a three-year-old child, numerous times with his hand or fist, both on

the head and various parts of his body.  The blunt force injuries were accomplished by

sufficient force to cause severe head trauma, bruise several internal organs, and

eventually cause Wesley's death.  Given the disparity in size and strength between the

defendant and Wesley, and the number and severity of the wounds indicating the

considerable force used in striking Wesley, a reasonable jury could have found, beyond a

reasonable doubt, that the defendant was aware of a high probability that the blows he

struck would result in Wesley's death.3

	Right to Counsel

	The defendant contends that defense counsel provided ineffective assistance by

failing to object to improper argument by the prosecutor and by failing to tender a jury instruction that would remedy the improper prosecutorial statement.  The defendant

claims that during closing argument, the State argued that the intent element of the

murder could be satisfied if the defendant knew that he was striking the victim.  The

defendant argues that this was an erroneous statement of the law because the State must

show that the defendant knowingly killed the victim, not just that he knowingly struck the

victim, and that, left uncorrected, this statement would have informed the jury that it

could return a guilty verdict even if the State did not prove all the elements of murder.

	In order to prevail on a claim of ineffective assistance of counsel, the defendant

must demonstrate that "(1) counsel's performance fell below an objective standard of

reasonableness based on prevailing professional norms; and (2) there is a reasonable

probability that because of counsel's errors the result of the proceeding is unreliable or

unfair."  Harrison v. State, 707 N.E.2d 767, 777 (Ind. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993)).  Because the failure to establish either prong will cause the claim to fail, Brown v. State, 698 N.E.2d 1132, 1142 (Ind. 1998), we need not discuss the relative strength of any claimed prejudice under the second inquiry if we find no deficiency in defense

counsel's performance under the first inquiry, Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.

	Isolated omissions or errors, poor strategy, or bad tactics are not in themselves

evidence of deficient performance.  Brown v. State, 691 N.E.2d 438, 446 (Ind. 1998); Wooden v. State, 657 N.E.2d 109, 112 (Ind. 1995).  In this case, counsel for the defendant filed various motions, presented opening and closing arguments, formulated

and followed a trial strategy, cross-examined witnesses, presented evidence, requested

and received hearings outside the presence of the jury, objected to one of the court's

tendered jury instructions, tendered a proposed jury instruction, and objected to the

court's submission of exhibits to the jury during deliberation (after the jury sent a note to

the judge regarding the admissibility of a statement).  We find that defense counsel

subjected the State's case to adversarial testing and that counsel's performance did not fall

below an objective standard of reasonableness based on prevailing professional norms. 

We decline the defendant's claim of ineffective assistance of counsel.

	Jury Instruction on Reasonable Doubt

	The defendant finally contends that the jury was erroneously instructed that it

could convict if it was "firmly convinced" of the defendant's guilt and that this reasonable

doubt instruction allowed the jury to convict the defendant based on proof that was less

than the "beyond a reasonable doubt" standard required by Article I, Section 19 of the

Indiana Constitution.  Brief of Defendant-Appellant at 25.  While he concedes that the

instruction given was consistent with the reasonable doubt instruction expressly approved

in Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996), he argues that Winegeart was based on federal constitutional considerations and that Article I, Section 19 of the Indiana

Constitution requires a different, stricter definition of reasonable doubt.

	The defendant tendered a reasonable doubt final instruction, but the trial court

refused it, noting that this Court had approved the trial court's instruction.  In his

objection to the trial court's instruction, defense counsel argued that the instruction did

not properly set out the burden of proof but never asserted any Indiana constitutional

grounds for such a claim.

	When objecting to an instruction, the objection at trial must be sufficiently clear

and specific to inform the trial court of the claimed error, identifying both the claimed

objectionable matter and the grounds for the objection.  Scisney v. State, 701 N.E.2d 847, 848-49 (Ind. 1998); Mitchem v. State, 685 N.E.2d 671, 675 (Ind. 1997).  Our trial rules provide:

	At the close of the evidence and before argument each party may file written

requests that the court instruct the jury on the law as set forth in the requests.  The

court shall inform counsel of its proposed action upon the requests prior to their

arguments to the jury, but the court shall instruct the jury after the arguments are

completed.  No party may claim as error the giving of an instruction unless he

objects thereto before the jury retires to consider its verdict, stating distinctly the

matter to which he objects and the grounds of his objection.  

Ind. Trial Rule 51(C).  This rule requires counsel to identify the specific objection and its

grounds in order to enhance trial fairness, to enable the trial court to avoid error, to

provide a sufficient opportunity to correct any potential error, and to facilitate effective

appellate review.  Scisney, 701 N.E.2d at 848; Smith v. State, 565 N.E.2d 1059, 1061 (Ind. 1991); Harvey v. State, 546 N.E.2d 844, 846 (Ind. 1989).  Thus, to preserve error for appeal, a defendant must specifically state the grounds for his objection, or the claim

is forfeited.  Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996).  See Ind. Crim. Rule 8(B) ("No error with respect to the giving of instructions shall be available . . . on appeal,

except upon the specific objections made. . . ."); Ingram v. State, 547 N.E.2d 823, 829 (Ind. 1989) (any grounds not raised at trial are waived for purposes of appeal).

	Because no claim of state constitutional infirmity was presented at trial, we decline

to consider it on appeal.

	Conclusion

	The judgment of the trial court is affirmed.

	SHEPARD, C.J., and BOEHM, J., concur.  SULLIVAN, and BOEHM, JJ., concurs as to the first

and thir d issues but concurs in result as to the second issue..