ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Gregory F. Zoeller

Public Defender of Indiana Attorney General of Indiana

Jonathan O. Chenoweth George P. Sherman

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 84S04-1103-PC-161

KEVIN L. HAMPTON, Appellant (Defendant below),

v.

STATE OF INDIANA, Appellee (Plaintiff below).

_________________________________

Appeal from the Vigo Superior Court, No. 84D06-0808-PC-2678

The Honorable Michael J. Lewis, Judge

_________________________________

On Transfer from the Indiana Court of Appeals, No. 84A04-1002-PC-122

_________________________________

February 14, 2012

Dickson, Justice.

We affirm the denial of the defendant's post-conviction claim of ineffective assistance of 

appellate counsel but hold that an instruction on the requirement of proof beyond a reasonable 

doubt does not obviate the necessity, where the conduct of the defendant constituting the commission of a charged offense is proven exclusively by circumstantial evidence, of an additional 

jury instruction advising the jury that proof by circumstantial evidence must be so conclusive and 

sure as to exclude every reasonable theory of innocence.

The defendant was convicted of murder, rape, and criminal deviate conduct following the 
2

brutal death of D.L. in Terre Haute, Indiana, in 2000. On direct appeal, the defendant challenged 

the sufficiency of evidence, the denial of his motion for mistrial, and the structure and length of 

his sentence, but he did not claim ineffective assistance of counsel. The Court of Appeals affirmed the convictions and resulting sentences. Hampton v. State, 873 N.E.2d 1074 (Ind. Ct. 

App. 2007), trans. not sought. The defendant next sought post-conviction relief asserting that his 

appellate counsel's failure to challenge the refusal of a tendered instruction constituted an unconstitutional deprivation of his right to the effective assistance of counsel. The post-conviction

court denied relief, finding that the trial court refused the tendered instruction because it believed 

that the State presented direct evidence at trial, namely DNA evidence. Findings of Fact, Conclusions of Law and Order, Appellant's App'x at 76. Additionally, the post-conviction court 

found Indiana precedent unclear regarding the question as to whether DNA evidence is "direct" 

or "circumstantial" evidence, id. at 81–83, and concluded that the decision of the defendant's appellate counsel to pursue other issues on direct appeal did not constitute ineffective assistance of 

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

Findings of Fact, Conclusions of Law and Order, Appellant's App'x at 76. 

In appealing a denial of post-conviction relief, the defendant has asserted a single claim: 

that his appellate attorney rendered constitutionally ineffective assistance of counsel by failing to 

assert on direct appeal that the trial court erred in refusing, over defense objections, to instruct 

the jury that "[w]here proof of guilt is by circumstantial evidence only, it must be so conclusive 

in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence." See Ind. Pattern Jury Instruction—Criminal 12.01 (Indiana Judges 

Association, 2d ed. 1991) (emphasis added).1(This instruction has often previously been given 

 

1 The jury was instructed regarding the nature of direct and circumstantial evidence through Indiana Pattern Jury Instruction 12.01. The trial court thus read the following to the jury, but omitted the final 

sentence (emphasized below):

Direct evidence means evidence that directly proves a fact, without an inference, and which 

in itself, if true, conclusively establishes that fact.

Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn.

An inference is a deduction of fact that may logically and reasonably be drawn from another 

fact or group of facts.

It is not necessary that facts be proved by direct evidence. Both direct evidence and circumstantial evidence are acceptable as a means of proof. Where proof of guilt is by circumstantial ev-
3

using the word "hypothesis" instead of "theory," but we favor "theory" as more understandable to 

jurors. See, e.g., 2 W.W. Thornton, Instructions to Juries §§ 2312–13 (1914).) The defendant's 

post-conviction argument is based on the premise that the DNA evidence presented in his case 

was not direct but circumstantial evidence, thus compelling the use of the rejected instruction. 

The DNA evidence, collected from vaginal swabs and from the victim's tank top, was consistent 

with a profile of the defendant's DNA "to a degree of scientific certainty." Trial Tr. at 527, 1001. 

The State has responded with multiple arguments: (a) that the defendant's appellate counsel 

properly omitted this issue on appeal because his trial counsel had referred to the DNA evidence 

at issue as direct rather than circumstantial evidence, and thus the issue was waived and not 

available for appellate challenge; (b) that it was reasonable for defense trial counsel to view the 

DNA evidence as direct evidence, and, therefore, an appellate challenge to this view would have 

little likelihood of success; (c) that, because the challenged instruction is not required when there 

is direct eyewitness identification or a defendant's confession, it should not be required when 

there is DNA evidence for the same reasons; and (d) that, even if the appellate defense counsel's 

performance was deficient, no prejudice resulted because the jury was otherwise properly instructed on reasonable doubt. 

The Court of Appeals affirmed the denial of post-conviction relief, believing that the "instruction on proof beyond a reasonable doubt . . . nicely covered the issue and rendered harmless 

any potential error" in refusing the tendered instruction. Hampton v. State, 936 N.E.2d 1274, 

1276–77 (Ind. Ct. App. 2010). Although we ultimately reject the defendant's claim of postconviction court error, we granted transfer to provide clarification for the bench and bar regarding the "reasonable theory of innocence" instruction because we disagree with the Court of Appeals that the giving of a conventional reasonable doubt instruction renders unnecessary the giving of the "reasonable theory of innocence" instruction.

 

idence only, it must be so conclusive in character and point so surely and unerringly to the guilt 

of the accused as to exclude every reasonable theory of innocence.

Ind. Pattern Jury Instruction—Criminal 12.01 (emphasis added).
4

1. Instructing Juries to Use Caution when Evidence is Circumstantial

A. Need for a Special Instruction

The importance of a "reasonable theory of innocence" instruction is deeply imbedded in 

Indiana jurisprudence. Nichols v. State, 591 N.E.2d 134, 136 (Ind. 1992) (citing Sumner v. 

State, 5 Blackf. 579 (Ind. 1841)). Our cases have long recognized the need for such an instruction where appropriate. See, e.g., Gambill v. State, 675 N.E.2d 668, 675 (Ind. 1996); Lloyd v. 

State, 669 N.E.2d 980, 985 (Ind. 1996); Stahl v. State, 616 N.E.2d 9, 11–12 (Ind. 1993); Myers 

v. State, 532 N.E.2d 1158, 1159 (Ind. 1989); Cox v. State, 475 N.E.2d 664, 666–68 (Ind. 1985); 

Spears v. State, 272 Ind. 634, 636–40, 401 N.E.2d 331, 334–35 (1980), overruled on other 

grounds by Hicks v. State, 544 N.E.2d 500 (Ind. 1989); McAdams v. State, 226 Ind. 403, 412, 81 

N.E.2d 671, 675 (1948); Gears v. State, 203 Ind. 400, 407–08, 180 N.E. 592, 594–95 (1932); 

Wolfe v. State, 200 Ind. 557, 564–68, 159 N.E. 545, 547–49 (1928); Robinson v. State, 188 Ind. 

467, 470–71, 124 N.E. 489, 490 (1919); Dunn v. State, 166 Ind. 694, 696–97, 78 N.E. 198, 198–

99 (1906); Hampton v. State, 160 Ind. 575, 576–77, 67 N.E. 442, 442 (1903); Wantland v. State,

145 Ind. 38, 39–40, 43 N.E. 931, 932 (1896). "[T]his Court has never departed from the conviction that the ['reasonable theory of innocence'] standard is a proper one to be employed at the trial court and a defendant is entitled to an instruction to that effect." Spears, 272 Ind. at 638, 401 

N.E.2d at 335.

We note that a number of more recent American appellate decisions appear to place less 

emphasis on the need for similar instructions. See Irene Merker Rosenberg & Yale L. Rosenberg, "Perhaps What Ye Say Is Based Only on Conjecture"—Circumstantial Evidence, Then and 

Now, 31 Hous. L. Rev. 1371, 1400–01 nn.121–22 (1995) (noting that at least twenty-nine states 

have eliminated a specific jury instruction on circumstantial evidence).2 This trend sprang after 

the United States Supreme Court's decision in Holland v. United States, 348 U.S. 121, 75 S. Ct. 

127, 99 L. Ed. 150 (1954), in which the Court rejected a claim of reversible error for the refusal 

"to instruct [the jury] that where the Government's evidence is circumstantial it must be such as 

 

2 Our own research, state by state, revealed little change since the Rosenberg & Rosenberg article 

was published.
5

to exclude every reasonable hypothesis other than that of guilt." Id. at 139, 75 S. Ct. at 137, 99 

L. Ed. at 166. Without extensive explanation, the Court concluded that "the better rule is that 

where the jury is properly instructed on the standards for reasonable doubt, such an additional 

instruction on circumstantial evidence is confusing and incorrect." Id. at 139–40, 75 S. Ct. at 

137, 99 L. Ed. at 166. We understand Holland to hold that including an additional "reasonable 

theory of innocence" instruction is not required but not that it is constitutionally erroneous. 

[T]he Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Cf. Hopt v. Utah, 120 U.S. 430, 440–41, 7 S. 

Ct. 614, 618–20, 30 L. Ed. 708 (1887). Indeed, so long as the court instructs the jury on 

the necessity that the defendant's guilt be proved beyond a reasonable doubt, see Jackson 

v. Virginia, 443 U.S. 307, 320, n.14, 99 S. Ct. 2781, 2789, n.14, 61 L. Ed. 2d 560 (1979), 

the Constitution does not require that any particular form of words be used in advising 

the jury of the government's burden of proof. Cf. Taylor v. Kentucky, 436 U.S. 478, 

485–86, 98 S. Ct. 1930, 1934–35, 56 L. Ed. 2d 468 (1978). Rather, “taken as a whole, 

the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.” 

Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 137, 99 L. Ed. 150 (1954). 

Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583, 590 (1994) (alteration in original). 

Subsequent to Holland, opinions from several states began to conclude that a "reasonable 

theory of innocence" instruction incorrectly suggests that circumstantial evidence is inherently 

less reliable.

3

 See, e.g., State v. Humphreys, 8 P.3d 652, 661–62 (Idaho 2000); People v. Bryant, 

499 N.E.2d 413, 420–21 (Ill. 1986); State v. Wilkins, 523 P.2d 728, 737 (Kan. 1974); State v. 

Lewisohn, 379 A.2d 1192, 1210 (Me. 1977); State v. Smith, 591 P.2d 664, 671–72 (N.M. 1979); 

State v. Jenks, 574 N.E.2d 492, 502 (Ohio 1991), superseded by state constitutional amendment 

on other grounds as recognized in State v. Smith, 684 N.E.2d 668 (Ohio 1997); Easlick v. State, 

90 P.3d 556, 559 n.3 (Okla. 2004); State v. Roddy, 401 A.2d 23, 34–35 (R.I. 1979); State v. 

Gosby, 539 P.2d 680, 684–86 (Wash. 1975). Still other states reversed course by simply citing 

the Holland decision without any cogent analysis. See State v. Grippon, 489 S.E.2d 462, 464–67 

(S.C. 1997) (Toal, J., concurring) (quoting Rosenberg & Rosenberg, supra, at 1402) ("[T]he 

 

3

For a discussion of this inclination see Rosenberg & Rosenberg, supra, at 1402 ("Many of the 

states following Holland do so without meaningful discussion of the issues presented, merely citing the 

Supreme Court decision, quoting its conclusory final paragraphs, and pointing to the growing number of 

states that have already eliminated the cautionary charge. These jurisdictions seem to regard the common 

law rule as no more than an antiquated doctrine waiting to be jettisoned in favor of the enlightened modern trend.").
6

widescale abandonment of the special circumstantial evidence charge has resulted mostly from a 

'bandwagon effect' following Holland, rather than from a reasoned rejection of the longstanding 

rule."). 

In contrast, however, numerous jurisdictions uphold the requirement of a "reasonable 

theory of innocence" instruction. For example, New York's high court explained:

[T]he rule [requiring the instruction] draws attention to the fact that proof by circumstantial evidence may require careful reasoning by the trier of facts. By highlighting this aspect, the rule hopefully forecloses a danger legitimately associated with circumstantial 

evidence—that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree.

People v. Ford, 488 N.E.2d 458, 465 (N.Y. 1985) (citation omitted). Other jurisdictions continue 

to instruct that juries should consider whether circumstantial evidence excludes every reasonable 

hypothesis, explanation, or theory of innocence. See, e.g., People v. Bacon, 240 P.3d 204, 225–

26 (Cal. 2010); Davis v. State, 674 S.E.2d 879, 880–84 (Ga. 2009); State v. Percy, 822 So. 2d 

823, 828 (La. Ct. App. 2002); People v. DeWitt, 433 N.W.2d 325, 329 (Mich. Ct. App. 1988);

McInnis v. State, 61 So. 3d 872, 875–76 (Miss. 2011); State v. Steele, 211 N.W.2d 855, 867 

(N.D. 1973); State v. Teague, 680 S.W.2d 785, 790 (Tenn. 1984).

We believe that discarding the "reasonable theory of innocence" jury instruction is unwise. While a criminal conviction may properly rest entirely upon circumstantial evidence, there 

is a qualitative difference between direct and circumstantial evidence with respect to the degree 

of reliability and certainty they provide as proof of guilt. Such a supplemental instruction is a 

safeguard urging jurors to carefully examine the inferences they draw from the evidence presented, thereby helping to assure that the jury's reasoning is sound. Additionally, it serves to

"reiterat[e] the magnitude of the ['proof beyond a reasonable doubt'] standard to juries when the 

evidence before them is purely circumstantial." Nichols, 591 N.E.2d at 136. In this regard, the 

"reasonable theory of innocence" instruction informs the jury that if a reasonable theory of innocence can be made of the circumstantial evidence, then there exists a reasonable doubt, and the 

defendant is entitled to the benefit of that doubt. 

Such a "reasonable theory of innocence" instruction, when appropriate, is not satisfied by 

the instruction on reasonable doubt. The State argues that our statement in Nichols—that the 
7

"reasonable theory of innocence" instruction is a way of restating "proof beyond a reasonable 

doubt"—renders the instruction "duplicitous."4 Appellee's Br. at 12. To the contrary, providing 

the jury with an additional cautionary instruction in evaluating circumstantial evidence not only 

supports but further enhances the concept of requiring proof beyond a reasonable doubt. It admonishes the jury to tread lightly where the evidentiary gap between logical certainty and guilt is 

more tenuous. For these reasons, we find it altogether appropriate that juries receive, where appropriate, a "reasonable theory of innocence" instruction in addition to the standard reasonable 

doubt instruction. 

B. Language of the Instruction

This special advisement has traditionally been accomplished in Indiana by an instruction 

like the one rejected by the trial court in the present case. Language within Indiana Pattern Jury 

Instruction 12.01 provides: "Where proof of guilt is by circumstantial evidence only, it must be 

so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence." Ind. Pattern Jury Instruction—Criminal 12.01

(emphasis added). Effective juror comprehension and application, however, are compromised by 

impediments in the instruction's language—especially the uncertainties embedded in the phrases

"proof of guilt" and "by circumstantial evidence only."

First, the instruction's language—that it applies where proof of "guilt" is "circumstantial 

only"—is potentially confusing. "Proof of guilt" could require that any evidence which supports 

an individual element of the charged offense be circumstantial, or it could require that all the ev-

 

4 The State also relies on our opinion in McCurry v. State, 558 N.E.2d 817 (Ind. 1990), in support 

of this position. Appellee's Br. at 12. But the precedential value of language in McCurry regarding a 

"covering" instruction is not controlling. The case was decided on the basis of waiver because the asserted instruction error in McCurry was not properly preserved at trial. Id. at 819. Additionally, the language 

is contrary to our holdings in several subsequent cases, including Nichols. See, e.g., Davenport v. State, 

749 N.E.2d 1144, 1150 (Ind. 2001) (holding that refusal of a tendered instruction on circumstantial evidence was proper because the evidence was not solely circumstantial); Carr v. State, 728 N.E.2d 125 (Ind. 

2000) (same); Gambill, 675 N.E.2d at 675 ("[A] defendant is entitled to an instruction which states that 

when proof of guilt is attempted by circumstantial evidence alone, the circumstances must exclude all 

reasonable hypothesis [sic] of innocence."); Lloyd, 669 N.E.2d at 985 (stating that a defendant is entitled 

to a "reasonable hypothesis" instruction when a case rests entirely on circumstantial evidence); Nichols, 

591 N.E.2d at 136 (stating that the "reasonable hypothesis" instruction is necessary when the evidence 

presented at trial is "solely circumstantial"). 
8

idence related to all elements of a charge be circumstantial. Compare Spears, 272 Ind. at 636–

40, 401 N.E.2d at 334–35 (finding sufficient absence of direct evidence to warrant "reasonable 

theory of innocence" instruction despite direct evidence that the defendant and the victim were 

fighting earlier in the evening and that the victim was later found unconscious in the hallway, 

and that he died from skull fractures likely caused when his head hit the floor), with Davenport v. 

State, 749 N.E.2d 1144, 1149–50 (Ind. 2001) (affirming refusal of "reasonable theory of innocence" instruction where victim died of strangulation and had thirty-nine injuries and witness 

observed defendant beating on the victim several hours earlier). In most criminal prosecutions, 

there is some direct evidence that the charged crime was committed by someone. Thus, if the 

phrase "by circumstantial evidence only" is construed to not require jurors to consider whether 

there exist reasonable alternative theories of innocence whenever the occurrence of a criminal 

offense is shown in part by direct evidence, then the instruction would rarely, if ever, be used. 

On the other hand, the mens rea element for a criminal offense is almost inevitably, absent a defendant's confession or admission, a matter of circumstantial proof. Thus, requiring jurors to 

consider the possible existence of an alternate reasonable theory of innocence whenever proof of

the mens rea element is circumstantial would lead to use of the instruction in most all criminal 

cases. See Spears, 272 Ind. at 639–40, 401 N.E.2d at 335 (requiring the "reasonable theory of 

innocence" instruction when circumstantial evidence is the exclusive proof of the actus reus

5

but 

not when used to prove the mens rea: "To hold otherwise would require a circumstantial evidence instruction in every case involving a crime containing the element of intent. Unnecessary 

confusion would result from such a course."). 

From our review of jurisdictions employing an instruction similar to our "reasonable theory of innocence" instruction, we find no consistent approach to resolving these issues. Mississippi requires an instruction requiring the "exclusion of all reasonable hypotheses consistent with 

innocence" whenever there is any "direct evidence" such as "an admission or confession by the 

defendant to a significant element of the offense, or eyewitness testimony to the gravamen of the 

offense charged." McInnis, 61 So. 3d at 876 (emphasis omitted) (quoting Kirkwood v. State, 52 

So. 3d 1184, 1187 (Miss. 2011)) (internal quotation marks omitted). In Michigan, juries are in-

 

5 The Latin phrase "actus reus" refers to the "wrongful deed that comprises the physical components of a crime and that generally must be coupled with the mens rea [the criminal state of mind], to establish criminal liability." Black's Law Dictionary 41–42 (9th ed. 2009). 
9

structed that "[i]f the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.” DeWitt, 433 N.W.2d at 329 (emphasis added). But Tennessee 

calls for the instruction only when "the evidence is entirely circumstantial."6 State v. Knight, 

969 S.W.2d 939, 941–42 (Tenn. Crim. App. 1997) (emphasis added); see also Teague, 680 

S.W.2d at 790. 

Notwithstanding the strong support in Indiana case law for the concept of a "reasonable 

theory of innocence" instruction, in actual fact, the refusal of such instruction has rarely been 

found to be error, often based on the presence of evidence liberally deemed to be "direct" rather 

than "circumstantial." See, e.g., Davenport, 749 N.E.2d at 1149–50 (finding direct evidence 

where son observed his mother being beaten by the defendant, sought to intervene but was struck 

by defendant and went to bed, and the next day the mother was found murdered by strangulation, 

which was not witnessed by the son); Clemens v. State, 610 N.E.2d 236, 243–44 (Ind. 1993)

(finding direct evidence from the defendant's admission that he was present when the victim sustained his mortal injuries and the pathologist testified that those injuries must have been inflicted 

intentionally); Chapman v. State, 556 N.E.2d 927, 931 (Ind. 1990) (finding direct evidence from 

testimony of bank teller who identified defendant as person standing outside bank before the 

robbery, but who could not see the facial features to identify the hooded robber who perpetrated 

the robbery). While this Court in Spears, which reversed a murder conviction, evaluated the necessity of giving a "reasonable theory of innocence" instruction by considering whether there 

was any direct evidence showing the actus reus of a charged crime, rather than just direct evidence of any element of the crime, 272 Ind. at 636–40, 401 N.E.2d at 334–35, this distinction has 

not yet been applied in any of our ensuing cases. Other than Spears, we find no case from this 

 

6

See Tenn. Pattern Instruction—Criminal 42.03, TnCrimLaw, http://www.tncrimlaw.com/TPI_

Crim/42_03.htm (last visited Feb. 13, 2012) ("When the evidence is made up entirely of circumstantial 

evidence, then before you would be justified in finding the defendant guilty, you must find that all the 

essential facts are consistent with the hypothesis of guilt, as that is to be compared with all the facts 

proved; the facts must exclude every other reasonable theory or hypothesis except that of guilt; and the 

facts must establish such a certainty of guilt of the defendant as to convince the mind beyond a reasonable 

doubt that the defendant is the one who committed the offense.").
10

Court since 1928 that reversed a conviction due to a trial court's refusal to give a "reasonable 

theory of innocence" instruction. Landess v. State, 200 Ind. 440, 164 N.E. 267 (1928).7 

These issues are not clarified by the present pattern instruction, which fails to clearly inform jurors whether the requirement of heightened scrutiny of circumstantial evidence applies 

only when there is a complete absence of direct evidence on every element of an offense, or 

when there is an absence of direct evidence with respect to a significant element or crucial component of guilt, or when there is an absence of direct evidence proving any single element of the 

charged statutory offense, or otherwise. 

Second, the instruction unnecessarily calls upon the jury to determine whether evidence 

of guilt is "circumstantial." Such an evaluation is already the province of the trial judge in deciding whether such instruction is required in light of the nature of the evidence presented. Distinguishing between direct and circumstantial evidence as proof of a particular fact is a legal determination appropriate for judicial evaluation. It may require intricate legal analysis. 

Direct evidence is "[e]vidence that is based on personal knowledge or observation and 

that, if true, proves a fact without inference or presumption." Black's Law Dictionary 636 (9th 

ed. 2009). Conversely, circumstantial evidence is "[e]vidence based on inference and not on personal knowledge or observation." Id. Indiana case law has expressed it thusly: "Direct evidence 

means evidence that directly proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact. Circumstantial evidence means evidence that proves a fact from 

which an inference of the existence of another fact may be drawn." Gambill, 675 N.E.2d at 675. 

And to explain the meaning of "inference," the jury in Gambill was further instructed: "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or 

 

7

For other cases from this Court rejecting a claim of error for refusal to give a "reasonably theory 

of innocence" instruction, see, e.g., Carr, 728 N.E.2d at 130–31; Lloyd, 669 N.E.2d at 985; Stahl, 616 

N.E.2d at 11–12; Clemens, 610 N.E.2d at 243–44; Page v. State, 518 N.E.2d 1089, 1092–93 (Ind. 1988); 

Goolsby v. State, 517 N.E.2d 54, 62–63 (Ind. 1987); Armour v. State, 479 N.E.2d 1294, 1300 (Ind. 1985);

Murray v. State, 479 N.E.2d 1283, 1288 (Ind. 1985); Cox, 475 N.E.2d at 666–68; Brendel v. State, 460 

N.E.2d 919, 921–22 (Ind. 1984); Roarks v. State, 448 N.E.2d 1071, 1074–75 (Ind. 1983); Haynes v. 

State, 431 N.E.2d 83, 87–88 (Ind. 1982); Faught v. State, 271 Ind. 153, 161–62, 390 N.E.2d 1011, 1017 

(1979); Hitch v. State, 259 Ind. 1, 11–12, 284 N.E.2d 783, 789 (1972); Turner v. State, 254 Ind. 195, 

198–200, 258 N.E.2d 641, 642–43 (1970); Wolfe, 200 Ind. at 564–68, 159 N.E. at 547–49.
11

group of facts." Id. But every evidentiary assertion at trial is "direct evidence" of something. 

That is, it is a fact offered as true and if accepted by the jury as such, conclusively establishes 

that fact.

In the grouping of circumstantial evidence, difficulty has arisen from not keeping in mind 

that most circumstantial evidentiary facts must ultimately in turn become themselves a 

proposition and be proved by "direct" evidence and also from confining the latter term to 

assertions of some main fact in issue. For example, the finding of a bloody knife upon 

the accused after a secret killing is a circumstance from which an important inference 

may be drawn; yet this fact of the finding must be proved by some person's assertion.

IA John Henry Wigmore, Evidence § 25, at 955 (Tillers rev. 1983) (footnote omitted). Thus, as 

another example, footprints or fingerprints that place an accused at the scene of a crime may be 

direct evidence of the accused's presence at some point in time but only circumstantial proof that 

the accused committed the charged offense.8 

 

8

The complexities of distinguishing direct from circumstantial evidence have received considerable academic attention. For example, some authorities distinguish between "direct" and "circumstantial" 

evidence based on the conclusion that the assertion is offered to prove. "Since the purpose of using evidence is to confirm or deny a proposed conclusion, it is the conclusion to which evidence must be related 

in order to define the types of evidence in functional terms." Lyman Ray Patterson, The Types of Evidence: An Analysis, 19 Vand. L. Rev. 1, 4 (1965). In simple terms, in a criminal trial that which the State 

seeks to prove (e.g., robbery) is the "proposed conclusion." For example, if the State seeks to prove that P 

robbed J, then eyewitness testimony, "I saw P rob J," if believed by the jury, can lead only to the conclusion that P robbed J. See id. "The evidence is direct evidence because it is the basis of a direct inference 

which coincides with the proposed conclusion, and the inference is the only inference relative to the proposed conclusion that can be properly drawn." Id. The following delineation is helpful: "Direct evidence 

is a proposition which is consistent only with either the proposed conclusion or its contradictory; circumstantial evidence is consistent with both the proposed conclusion and its contradictory." Id. at 5–6 (emphasis added).

For example, if the proposed conclusion is that defendant and others robbed the victim, the victim's voice identification of the defendant as one of the robbers is consistent with only the proposed conclusion and is, therefore, direct evidence. Similarly, if the proposed conclusion is that 

the defendant and others robbed the victim, the defendant's testimony that he did not rob the victim is consistent with only the opposite of the proposed conclusion and is, therefore, direct evidence. On the other hand, testimony that the defendant was seen in the company of the robbers 

an hour before the robbery is consistent with both the conclusion and its opposite, i.e., it is consistent with both the defendant's guilt and his innocence. Although the testimony is relevant to 

the proposed conclusion, it is only circumstantial evidence of defendant's guilt.

Stubbs v. State, 463 S.E.2d 686, 688–89 (Ga. 1995) (emphasis omitted) (footnote omitted) (citations 

omitted).
12

C. Reformulating the Use and Language of the Instruction

To preserve our historic recognition that juries in criminal cases should be reminded to 

use particular caution when considering whether to find guilt based solely on crucial circumstantial evidence, we conclude that a special instruction is appropriate, but we reformulate the manner of use and language of the instruction. First, we find it inappropriate to include language 

burdening the jury with the task of deciding whether to apply the reasonable theory of innocence 

standard. Whether an instruction is supported by the evidence is a matter for the trial court to 

determine, and it need not be reevaluated by the jury. Second, because Indiana jurisprudence 

recognizes the importance of such an instruction in certain cases involving circumstantial evidence but our case law reveals a reluctance to find reversible error for failure to give the instruction if there is substantial direct evidence of guilt, we elect to apply the approach taken in Spears

and direct that the "reasonable theory of innocence" instruction is appropriate only where the trial court finds that the evidence showing that the conduct of the defendant constituting the commission of a charged offense, the actus reus, is proven exclusively by circumstantial evidence. 

As discussed above, to deny the availability of a "reasonable theory of innocence" instruction 

whenever there is any direct evidence of the fact that a criminal offense has occurred, however, 

could render the instruction unlikely ever to be used, but requiring the instruction whenever there 

is no direct evidence of any single element would compel its use in almost all criminal cases because mens rea is often shown only by circumstantial evidence. 

We thus hold that, when the trial court determines that the defendant's conduct required 

for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the 

accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive

and sure as to exclude every reasonable theory of innocence. 

2. Denial of Post-Conviction Relief

In this appeal from the denial of post conviction relief, the defendant asserts that his appellate attorney rendered constitutionally ineffective assistance of counsel by failing to include 
13

on direct appeal any challenge to the trial court's refusal to give the defendant's tendered jury instruction regarding "reasonable theory of innocence." 

Post-conviction proceedings are civil proceedings in which the defendant must establish 

his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Ben-Yisrayl v. 

State, 738 N.E.2d 253, 258 (Ind. 2000). Post-conviction proceedings do not offer a super-appeal, 

"[r]ather, subsequent collateral challenges to convictions must be based on grounds enumerated 

in the post-conviction rules." Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002) (citing P.-C.R. 

1(1)); Ben-Yisrayl, 738 N.E.2d at 258. A claim of ineffective assistance of appellate counsel is a 

proper ground for post-conviction proceedings. Stevens, 770 N.E.2d at 746. Claims of ineffective assistance of appellate counsel are evaluated using the Strickland standard articulated by the 

Supreme Court. Id. at 760; Fisher v. State, 810 N.E.2d 674, 676 (Ind. 2004). "To establish a 

claim of ineffective assistance of counsel, a defendant must demonstrate to the post-conviction 

court that counsel performed deficiently and the deficiency resulted in prejudice." Lee v. State, 

892 N.E.2d 1231, 1233 (Ind. 2008) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. 

Ed. 2d at 693). 

This standard asks whether, "considering all the circumstances," counsel's actions were 

"reasonable[] under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S. Ct. at 

2065, 80 L. Ed. 2d at 694. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Bieghler v. State, 690 N.E.2d 188, 193 

(Ind. 1997). And even if appellate counsel's performance is deficient, "to prevail, petitioner must 

demonstrate a reasonable probability that the outcome of the direct appeal would have been different." Stevens, 770 N.E.2d at 760 (citing Bieghler, 690 N.E.2d at 194); see also Strickland, 

466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 ("A reasonable probability is a probability sufficient to undermine confidence in the outcome."). When evaluating a claimed deficiency 

in appellate representation due to an omission of an issue, a post-conviction court is properly 

deferential to appellate counsel's choice of issues for appeal "unless such a decision was unquestionably unreasonable." Bieghler, 690 N.E.2d at 194. Such deference is appropriate because the 

selection of issues for direct appeal "is one of the most important strategic decisions of appellate 

counsel." Id. (citing Ben-Yisrayl, 738 N.E.2d at 261). "Appellate counsel's performance, as to 
14

the selection and presentation of issues, will thus be presumed adequate unless found unquestionably unreasonable considering the information available in the trial record or otherwise 

known to the appellate counsel." Ben-Yisrayl, 738 N.E.2d at 261. In crafting an appeal, counsel 

must choose those issues which appear from the face of the record to be most availing. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out 

weaker arguments on appeal and focusing on one central issue if possible, or at most on a few 

key issues." Jones v. Barnes, 463 U.S. 745, 751–52, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 

994 (1983). Thus, to prevail in such claim in post-conviction proceedings, it is not enough to 

show that appellate counsel did not raise some potential issue; instead, the defendant must show 

that the issue was one which a reasonable attorney would have thought availing.

"When appealing from the denial of post-conviction relief, the petitioner stands in the 

position of one appealing from a negative judgment." Fisher, 810 N.E.2d at 679. Thus, the defendant "must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Stevens, 770 N.E.2d at 

745. "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." Id. We review the post-conviction 

court's factual findings for clear error, but do not defer to its conclusions of law. Id. at 746 (citing Ind. Trial Rule 52(A)); Fisher, 810 N.E.2d at 679. 

In denying relief, the post-conviction court found (a) that the trial court considered the 

DNA evidence as direct evidence, thereby precluding the instruction, and (b) that, because Indiana precedent was unclear regarding whether DNA evidence should be considered "direct" or 

"circumstantial" evidence, the appellate defense counsel's choice not to pursue this issue on direct appeal did not constitute ineffective assistance of counsel.

The defendant's appeal asserts that the post-conviction court should have found that his 

appellate counsel was deficient for failing to raise on direct appeal the trial court's rejection of 

the tendered "reasonable theory of innocence" instruction and that the defendant suffered sufficient prejudice from such defective performance. The post-conviction court's denial of relief was 

essentially predicated on its conclusion (1) that, if the DNA evidence is considered direct rather 
15

than circumstantial evidence (as the trial court found), then the tendered instruction was properly 

refused, and (2) that the characterization of DNA evidence is unclear under Indiana law, thereby 

providing a reasonable strategic basis for the appellate defense counsel to forego the issue on appeal. Whether the DNA evidence precluded the tendered instruction implicates both the deficient performance prong and the prejudice prong of the ineffective assistance analysis. If the trial court committed no error, then there is no defective performance in failing to claim such error 

on appeal. Likewise, if there was no error in rejecting the instruction, there would be no resulting prejudice from the failure to assert such an appellate claim. To evaluate the correctness of 

the post-conviction court's denial of relief, we turn to the issue of DNA and its characterization 

as direct or circumstantial evidence. This Court has never specifically addressed this issue, nor, 

apparently, have our sister states.

9

 

In the present case, the evidence the State proffered at trial as "direct evidence" was DNA 

recovered from the crime scene and from the victim. Findings of Fact, Conclusions of Law and 

Order, Appellant's App'x at 75–76; Appellant's Br. at 4–6; Appellee's Br. at 7–8. The vaginal 

swabs taken from the victim revealed semen that matched the DNA of the defendant. Trial Tr. at 

524–27; Findings of Fact, Conclusions of Law and Order, Appellant's App'x at 75–76. At the 

post-conviction trial, the State argued that the DNA is direct evidence of "identity," that the defendant was the perpetrator of the three charged offenses—murder, rape, and criminal deviate 

 

9 We find few cases that specifically address whether DNA is direct or circumstantial evidence: 

Thomas v. State, 824 So. 2d 1, 34–35 (Ala. Crim. App. 1999) (stating that DNA evidence is likely circumstantial without so holding), overruled on other grounds by Ex Parte Carter, 889 So. 2d 528 (Ala. 

2004); Trower v. State, 867 So. 2d 1043, 1047 (Miss. Ct. App. 2003) ("The case law of Mississippi treats 

DNA evidence as a type of circumstantial evidence."). Trower unequivocally stated that DNA evidence 

is circumstantial, yet three years later the Mississippi Supreme Court said differently: "In addition to direct scientific evidence such as fingerprints and DNA, 'direct evidence has been held to include evidence 

such as eyewitness testimony, the defendant's confession to the offense charged, or the defendant's admission as to an important element thereof.'" Garrett v. State, 921 So. 2d 288, 292 (Miss. 2006) (citation 

omitted); see also Bennett v. State, 933 So. 2d 930, 948 (Miss. 2006) (utilizing the exact same language). 

Other courts have proceeded on the assumption that DNA evidence is circumstantial, while admitting that 

"circumstantial evidence is frequently more reliable and stronger than direct proof by eyewitness testimony." People v. Rush, 672 N.Y.S.2d 362, 364 (N.Y. App. Div. 1998) (holding that DNA evidence recovered from rape victim and matched to defendant was sufficient to uphold conviction); see also Haynes v. 

State, 127 S.W.3d 456, 461 (Ark. 2003) (holding that circumstantial evidence, DNA matched to defendant found on ski mask worn during crime, was sufficient to uphold conviction). Our own cases show a 

similar approach. See, e.g., Jones v. State, 780 N.E.2d 373, 376 (Ind. 2002) (characterizing evidence 

from trial, including DNA matched to defendant, as circumstantial).
16

conduct. Post-Conviction Relief Hr'g Tr. at 16–17. On appeal, the State also argues that DNA 

could be regarded as direct evidence of rape by proving "that a person had sexual intercourse 

with the victim." Appellee's Br. at 10. 

The defendant contends that DNA evidence must always be circumstantial because it establishes only a "statistical probability" that the defendant was the donor. Appellant's Br. at 13. 

This, the defendant argues, requires the jury "to infer that [the defendant] was indeed the donor." 

Id. We think, however, that the defendant's point goes to the weight and credibility of the evidence, and not to whether DNA evidence is direct or circumstantial. For example, if an eyewitness testifies to seeing the defendant commit the crime, yet on cross-examination admits that she 

is not "absolutely" positive of her identification of the defendant but is only "ninety-eight percent" positive that it was the defendant she saw, we would not say that her testimony is circumstantial evidence. Eyewitness testimony is considered direct evidence. See Nichols, 591 N.E.2d 

at 136–37. No inferential steps are involved, the jury must decide only whether to believe the 

eyewitness and, in so doing, what weight to give to her testimony. The eyewitness testimony is 

consistent only with the "proposed conclusion" that the defendant committed the crime. Her 

statement that she is "ninety-eight percent" positive of the identification goes to the credibility of 

her testimony. Expert testimony of a "high statistical probability" in matching DNA is much the 

same. That the DNA match may not be absolute goes to the weight and credibility of the evidence. But whether that expert testimony is direct or circumstantial is determined by the fact or 

facts which the evidence seeks to prove. The DNA evidence in this case was direct evidence only of the defendant's presence with the victim at some prior time, but only circumstantial as to 

the defendant's criminal conduct and requisite intent as to each of the charged crimes.

10

As proof of the defendant's guilt with respect to the offense of rape,11 the DNA evidence

 

10 See infra note 12.

11 In Indiana, the criminal offense of rape is defined as follows:

[A] person who knowingly or intentionally has sexual intercourse with a member of the opposite 

sex when:

(1) the other person is compelled by force or imminent threat of force;

(2) the other person is unaware that the sexual intercourse is occurring; or

(3) the other person is so mentally disabled or deficient that consent to sexual intercourse 

cannot be given;
17

requires the inferential step that intercourse was "compelled by force or imminent threat of 

force," or otherwise without the victim's consent without providing a basis upon which that inference may be made. See Ind. Code § 35-42-4-1(a). "Direct evidence is a proposition which is 

consistent only with either the proposed conclusion or its contradictory; circumstantial evidence 

is consistent with both the proposed conclusion and its contradictory." Lyman Ray Patterson, 

The Types of Evidence: An Analysis, 19 Vand. L. Rev. 1, 5–6 (1965). (emphasis added). In this 

context, the State asserts that DNA found in the victim and matched to the defendant, if accepted 

by the jury, is consistent only with the State's "proposed conclusion" that the defendant raped the 

victim. We disagree. This same evidence is equally consistent with the contradictory proposition that the defendant and the victim engaged in consensual intercourse.12 To the extent that the 

DNA provided direct evidence of the defendant's presence or relationship with the victim at or 

before the time the crimes were committed, it was not direct evidence of the defendant's physical 

conduct comprising the actus reus of the charged offense of rape. 

The same analysis applies to the role of the DNA evidence with respect to the crimes of

murder and criminal deviate conduct in this case. As to both offenses, the DNA evidence, while 

consistent with a conclusion that the perpetrator of these crimes was the defendant, is simultaneously consistent with a conclusion that the defendant was at some point in the presence of the 

victim but did not "kill" her or force her "to perform or submit to deviate sexual conduct." Ind. 

Code § 35-42-1-1 (murder); Ind. Code § 35-42-4-2 (criminal deviate conduct). 

Application of our analysis today leads us to conclude that the DNA evidence in the present case should be considered as circumstantial and not direct evidence of the defendant's conduct comprising the physical components of each of the charged criminal offenses (actus reus). 

On the other hand, such focus upon actus reus has not been the prevailing basis of prior Indiana 

case law, which had usually found the "reasonable theory of innocence" instruction properly rejected when any one element of a criminal offense has been proven by direct evidence. Under 

 

commits rape, a Class B felony.

Ind. Code § 35-42-4-1(a).

12 DNA evidence may not always be circumstantial. For example, if the victim were legally incapable of consent, such as a "child under fourteen years of age," the same type of DNA evidence offered in 

this case may be direct evidence of the actus reas for statutory rape. See Ind. Code § 35-42-4-3 (child 

molesting). 
18

such line of authority, the rejection of the instruction would not have been error in the present 

case because of the direct evidence in this case proving that the victim was raped, murdered, and 

criminally sexually battered by someone, or the DNA direct evidence identifying the defendant 

as having a prior involvement with the victim. The existing state of the law could have led the 

defendant's appellate counsel to conclude that there was little if any merit in pursuing on appeal 

the refusal of the "reasonable theory of innocence" instruction. Due to past variations in application of the "proof of guilt" language in the "reasonable theory of innocence" instruction, the law 

on this issue was unfavorable to the defendant at the time of his trial and direct appeal. 

We cannot conclude that the evidence before the post-conviction court leads unerringly 

and unmistakably to a decision contrary to the court's denial of the defendant's petition for postconviction relief. Given the facts and the unfavorable state of the law, the defendant's appellate 

counsel did not fail to raise a strongly availing appellate issue by failing to challenge the trial 

court's rejection of the "reasonable theory of innocence" instruction, and thus the denial of postconviction relief was not erroneous. 

Conclusion

We affirm the judgment denying the defendant's petition for post-conviction relief.

Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.