A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE Susan K. Carpenter Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana

Jonathan O. Chenoweth George P. She r man Deputy Public Defender Deputy Attorney General Indiana polis, Indiana Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 84S04

- 1103

- PC

- 161

K EVIN L. H AMPTON , Appellant (Defendant bel ow),

v.
S TATE O F I NDIANA , Appellee (Plaintiff below)

.

_________________________________ Appeal from the Vigo Superior Court, No. 84D06

- 0808

- PC

- 2678

The Honorable Michael J. Lewis , Judge

_________________________________ On Transfer from the Indian a 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 ine f fective 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 co mmission of a charged offense is proven exclusively by circumstantial evidence , of an additional jury instruction advi sing the jury that proof by circumstantial evidence must be so conclusive and

sure as to exclude every reasonable theory of inn o cence.

T he defendant was convicted of murder, rape, and criminal deviate conduct following the2

brutal death of D.L. in Terre H aute, 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 App eals a ffirmed t he 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 u n co nstitutional 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 b e lieved that the Sta te presented direct evidence at trial, namely DNA evidence. Findings of Fact, Co nclusions 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 a ppellate counsel to pursue other issues on direct a p peal 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 si n gle claim: that his appellate attorney rendere d 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 re asonable theory of innocence." See Ind

. Pattern Jury Instruction

— Criminal 12.01 ( Indiana Judges Association , 2d ed. 1991) (emphasis added). 1 (Thi s i n struction has often previously been given

1 The jury was instructed regarding the nature of direct and circumstantial evidence through Ind iana 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, con clusively establishes that fact. Circumstantial evidence means evidence that proves a fact from which an inference of the e xistence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fa ct or group of facts. It is not necessary that facts be proved by direct evidence. Both direct evidence and circu ms tantial evidence are acceptable as a means of proof. Where proof of guilt is by circumstantial e v-3

using the word "hypothesis" instead of "theory," but we favor "theory" as more understandable to jur or s. See , e.g. , 2 W.W. Thornton, Instructions to Juries §§ 2312

– 13 (1914). ) The defe n dant'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 instru c tion. The DNA evidence, collected from vaginal swabs and from the victim's tank top, w a s co n sistent 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 hi s trial counsel had referred to the DNA ev i dence 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 ev i dence as direct evidence , and , therefore, an appellate challenge to this view would have little l i kelihood of success; (c) that, because the challenged instruction is not required when there is direct eyewitness identification or a defendant's confession, it sho uld 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 i nstructed on re a sonable doubt.

The Cour t of Appeals affirmed the denial of post

- conviction relief, believing that the " i nstruction on proof beyond a reasonable doubt

. . . nicely covered the issue and re n dered 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 post

conviction court error, we granted transfer to provide clarification for the bench and bar regar ding the "reasonable theory of innocence" instruct ion because we disagree with the Court of A ppeals that the giving of a conventional reasonable doubt instruction renders unnecessary the gi ving of the "reasonable theory of inn o cence" instruction

.

i dence only, it must be so conclusive in c haracter 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 Cir cumstantial

A. Need for a S

pecial I nstruction

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 Sum n er v. State , 5 Blackf. 5 79 (Ind. 1841)). Our case s have long recognized the need for such an instru ction 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); Mye rs 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. Sta te , 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 , 4 90 (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 fro m the convi ction that the [ ' re asonable theory of innocence ' ] standard is a proper one to be employed at the tr ial 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. Rose nberg, "Pe r haps 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 a t 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. E d. 150 (1954) , in which the Court rejected a claim of reversible error for the r e fusal "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 pu b lished.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 additio n al instruction on circumstantial evid ence is confusing and inco r rect." 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 e r roneous. [ T ] he Constitution neither prohibits trial courts from defining reasonable doubt nor r equires them to do so as a matter of course. Cf

. Hopt v. Utah , 120 U.S. 430, 4 40

– 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 w ords 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 re asonable 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) (alter ation in original)

.
Subsequent to Holla nd , opinions from several states began to conclude that a "reasonable theory of innocence " instruction incorrectly suggests t hat 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 reco g nized 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., concur ring) (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 fo l lowing Holland do so without meaningful discussion of the issues presented, merely citing the Supreme Co urt dec i sion, quoting its conclusory final paragraphs, and pointing to the growing number of states that have already eliminated the ca u tionary charge. These jurisdictions seem to regard the common law rule as no more than an antiquated doctrine waiting t o be jettisoned in favor of th e enlightened mo dern trend.").6

w i descal e abandonment of the special circumstantial ev i dence 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 requ irement of a "reasonable theory of innocence " instruction . For example , New York's high court e x plained: [T] he rule [ requiring the instruction] draws attention to the fact that proof by circumsta ntial evidence may require careful reasoning by the trier of facts. By highlighting this a spect, 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 u nwarranted conclusions based on prob a bilities of low degree. People v. Ford , 488 N.E.2d 458, 465 ( N.Y. 1985) (citation omitted). O ther jurisdictions conti n ue
to instruct that juries should consider whether circumstantial evidence excludes every reaso n able hypothesis, explanation, or theory of innocence. See, e.g. , People v. B a con , 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 u nwise. While a criminal conviction m ay properly rest entirely upon circumstantial ev i dence, there is a qualitative difference between direct and circumstantial evidence with respect to the d e gree 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 pr e sen ted, 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 do ubt ' ] 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 inn ocence can be made of the ci rcumstantial evidence, then there exists a reasonable doubt, and the defen d ant 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

. Th e State argues that our statement in Nichols

— that the7

"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 w ith an additional cautionary instruction in evaluating circumstantial evidence not only supports but further enhances the concept of requiring proof beyond a reasonable doubt. It a dmonishes the jury to tread lightly where the evidentiary gap between logic al certainty and guilt is

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

B. Language o

f 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 Pa t tern Jury Instruction 12.01 provides : "Where proof of gui lt 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 e xclude every reasonable theory of innocence." Ind

. Pattern Jury Instruction

— Criminal 12.01 (emphasis added)

. Effective juror comprehension and application, however, are compr o mised by impediments in the instruction's language

— especially the uncertainties embe d ded in the phrases "proof of guilt " and "by circumstantial evidence o n ly ."

First, the instruction 's l anguage

— that it applies where proof of " guilt" is " circumstantial only "

— is potentially confusing

. " P roof of guilt" could r e quire that any evidence which supports an individual element of the charged offense be circumstantial , or it could require that all the e v-

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 reg arding a "covering" instruction is not controlling. The case was decided on the basis of waiver because the a s ser ted instruction error in McCurry was not properly preserved at trial. Id. at 819. Additionally, the la n guage is contrary to our holdings in several subsequent cases, including Nichols

. See, e.g. , Dave n port v. State , 749 N.E.2d 1144, 1150 (Ind. 2001) (holding that refusal of a tendered instruction on circumstantial ev idence 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 e x clude all reasonable hypothes is [ sic ] of innocence."); Lloyd , 669 N.E.2d at 985 (stating that a d e fendant 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" i nstru c tion is necessary when the evidence presented at trial is "solely circumsta n tial").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 th e ory of innocence " instruction despite direct evidence tha t the defendant and the victim were fighting earlier in the evening and that the victim was later found unco n scious 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 inn ocence " instruction where victim died of strangul a tion and had thirty

- nine injuries and witness observed defendant beating on the victim several hours earl i er ). In most criminal prosecutio ns, there is some direct evidence that the charged crime was committed by someone
. T hus , if the phrase " by circumstantial evidence only" is construed to not require jurors to consider whether there exist reasonable alternative the o ries of innocence whenev er 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, absen t a d efendant's confession or admis sion , 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 crim inal

cases. See Spears , 272 Ind. at 639

– 40, 401 N.E.2d at 335 (requiring the "reasonable theory of innocence " i n struction when circumstantial evidence is the exclusive proof of the actus reus 5 but not when used to prove the mens rea : " To hold otherwise wo uld require a circumstantial ev idence instru c tion in every case involving a crime containing the element of intent. Unnecessary conf u sion would result from such a course

. ").

From our review of jurisdictions employing an instruction similar to our "rea sonable th eory of innocence" instruction, we find no consistent approach to resolving these issues. Mi s si ssip p i require s an instruction requiring the " exclusion of all reasonable hypotheses consistent with innocence " whenever there is any " d i rect 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 i n-

5 The Latin phrase "actus reus" refers to the "wrongful deed that comprises the physical comp onents of a crime and that generally must be coupled with the mens rea [the criminal state of mind], to e stablish criminal liability." Black's Law Dictionary 41

– 42 (9 th ed. 2009).9

structed that " [i] f the direct and circumstantial evidence, taken together , is open to two reaso n able constructions, one indicating guilt and the other innocence, it is your duty to accept the co nstruction indicating innocence.” DeWitt , 433 N.W.2d at 329 (emphasis added). But Tennessee calls for the instruction only when " the evidence is en t irely 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

.

Notwithst anding 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 e rror, 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 interve ne but was struck by defendant and went to bed, and the next day the mother was found murdered by stra n gulation, 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 admissi on that he was present when the victim su stained his mortal injuries and the pathologist testi fied that those injuries must have been inflicted i n tentionally ); Chapman v. State , 556 N.E.2d 927, 931 (Ind. 1990) (finding direct evidence from testimony of ban k 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, eva luated the n ecessity 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 ev idence 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 circum s tantial 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 fac ts 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 i nform jurors whether the requirement of heightened scrutiny of circumstantial evidence appli es 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 co mponent of guilt , or when there is an absence of direct evidence p roving any single element of the charged statutory offense, or otherwise

.

Second, the instruction unnecessarily calls up on the jury to determine whether evidence of guilt is "circumstantial." Such an evaluation is already the province of the trial jud ge in deci ding whether such instruction is required in light of the nature of the evidence presented. Disti nguishing between direct and circumstantial evidence as proof of a particular fact is a legal dete rmination appropriate for judicial evaluation. It may require intricate legal analysis.

Direct evidence is "[e]vidence that is based on personal knowledge or o b servation and that, if true, proves a fact without inference or presumption." Black's Law Dictionary 636 (9th ed. 2009). Conversely, circum stantial evidence is "[e]vidence based on inference and not on pe rsonal knowledge or observation." Id. Indiana case law has expressed it thusly: "Direct ev i dence means evidence that directly proves a fact, without an inference, and which in itself, if tr ue, co nclusively establishes that fact. Circumstantial evidence means ev i dence 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 inf e rence 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); A r mour 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. Stat e , 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 e very evidentiary assertion at trial is "direct evidence" of som e thing

. That is, it is a fact o ffered as true and if accepted by the jury as such, conclusively esta b lishes 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 the mselves 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 i mportant inference may be drawn; yet this fact of the finding must be proved by some person's asse r tion. IA John Henry Wigmore, Evidence § 25, at 955 (Tillers rev. 1983) (footnote omitted). Thus, as another example, footprints or fingerprints that place a n accused at the scene of a crime may be direct evidence of the accused's pre s ence 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 conside rab le ac a demic 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 ev idence is to confirm or deny a proposed conclusi on, 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 Ev idence: An Analysis , 19 Vand. L. Rev. 1, 4 (1965). In simple terms, in a crim i nal trial that whi ch 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 concl usion that P robbed J. See id. "The evidence is direct evidence because it is the b a sis of a direct inference which coincides with the proposed conclusion, and the inference is the only inference relative to the pr oposed co n clusion that can be properly drawn." Id. The following d elineation is helpful: "Direct evidence is a proposition which is consistent only with either the proposed conclusion or its contradictory; circu ms tantial evidence is consistent with both the proposed conclusion and its contradictory." Id. at 5

– 6 (e mphasi s added). For example, if the proposed conclusion is that defendant and others robbed the victim, the vi ctim's voice identification of the defendant as one of the robbers is consistent with only the pr oposed 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 vi ctim is consistent with only the opposite of the proposed conclusion and is, therefore, direct ev idence. On the o ther 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 co nsi s tent with both the defendant's guilt and his innocence. Although the testi mony is relevant to the proposed conclusion, it is only ci r cumstantial 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 preser ve our historic recognition that juries in criminal cases should be r e minded to use particular caution when considering whether to find guilt based solely on crucial circumsta ntial evidence, we conclude that a special instruction is appropriate, but we re f ormulat e the ma nner of use and language of the instruction. First, we find it inappropriate to include language burden ing the jury with the task of deciding whether to apply the reasonable theory of innocence
stan d ard. 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 jurispr u dence recognizes the importance of such an instruction in certain cases involving circumstantial ev idence but our ca se law reveals a reluctance to find reversible error for failure to give the instru ction if there is su b stantial direct evidence of guilt, we elect to apply the approach taken in Spears and direct that the "reasonable theory of innocence" instruction is ap propriate only where the tr ial court find s that the evidence showing that the conduct of the defendant constituting the co mmission of a charged offense, the actus reus , is proven exclusively by circumstantial ev i dence. As discussed above, to deny the avai lability of a "reasonable theory of innocence" i n struction 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 requi r ing the instruction whenever there is no direct evidence of any single element would compel its use in al most all criminal cases b ecause mens rea is often shown only by circumstantial ev i dence.

We thus hold that , w hen the trial court determines that the defendant's conduct r e quired for the commission of a charged offense , the actus re us , is established exclusively by circu ms ta n tial 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 th at the proof be so co n clusive 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 a ppellate attorney rendered consti tutionally ineffective assistance of counsel by failing to include13

on direct appeal any challenge to the trial court 's refus al to give the defendant's tendered jury i nstru c tion regarding " reasonabl e theory of innocence

. "

Post

- conviction proceedings are civil pr o ceedings 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]at her, 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 assist ance of appellate cou n sel is a proper ground for post

- conviction proceedings. Stevens , 770 N.E.2d at 746. Claims of ineffe ctive assistance of appellate counsel are evaluated using the Strickland standard articulated by the Supreme Court

. Id. at 760; Fis her v. State , 810 N.E.2d 674, 676 (Ind. 2004). "To establish a claim of ine f

fective assistance of counsel, a defendant must demonstrate to the post

- conviction
court that counsel performed deficiently and the deficiency resulted in prej u dice." Lee v. Stat e , 892 N.E.2d 1231, 1233 (Ind. 2008) (citing Strickland , 466 U.S. at 687 , 104 S. Ct. at 20 64 , 80 L. Ed. 2d at 6 93 ).

This standard asks whether, "considering all the circumstances," counsel's actions were "reasonable[] under prevailing professional norm s." Strickland , 466 U.S. at 688 , 104 S. Ct. at 20 65 , 80 L. Ed. 2d at 6 94

. "Judicial scrutiny of counsel's performance must be highly defere ntial." Id. at 689 , 104 S. Ct. at 20 65 , 80 L. Ed. 2d at 694 ; Bieghler v. State , 690 N.E.2d 188, 193 (Ind. 1997). And e ven if appellate counsel's performance is deficient, "to prevail, pet i tioner must demonstrate a reasonable probability that the outcome of the direct appeal would have been di fferent." St e vens , 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 20 68 , 80 L. Ed. 2d at 698 ("A reasonable probability is a probabi li ty sufficient to undermine confidence in the outcome."). When evalua t ing a claimed deficiency in appellate representation due to an omis sion of an issue, a post

- conviction court is properly d e ferential to appellate counsel's choice of issues for appeal "unless such a decision was unque stionably unreasonable." Bieghler , 690 N.E.2d at 194. Such def e rence is appropriate because the selectio n of issues for direct appeal "is one of the most impo r tant strategic decisions of appellate counsel." Id. (citing Ben

- Yisrayl , 738 N.E.2d at 261). "A p pellate counsel's performance, as to14

the selection and presentation of issues, will thus be presumed ad equate unless found unque stionably 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 a p peal, counsel must choose those issues which appear f rom the face of the record to be most availing. "Exp e r ienced advocates since time beyond memory have emphasized the i m portance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jon es 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 pr o ceedings, it is not enough to show that appellate counsel did not raise some potential issue; instead, the d e fend ant must show that the issue was one which a reasonable attorney would have thought avai l ing.

" When appealing from the denial of post

- conviction relief, the p e titioner stands in the position of one appealing from a negative judgment." Fisher , 810 N.E.2d at 679. Thus, the d efendant "must convince this Court that the evidence as a whole leads unerringly and unmistak ably to a decision opposite that reached by the post

- conviction court." Stevens , 770 N.E.2d at 745. "In other words, the defendant must conv ince this Court that there is no way within the law that the court below could have reached the decision it did." Id. We r e view the post

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

In denying relief, t he post

- conviction court found (a) that the trial court cons i dered the DNA evidence as direct evidence , thereby precluding the instruction, and (b) that , because Ind iana precedent w as unclear regarding whether DNA evidence should be considered "d i rect" or "circumstantial" evidence, the appellate defense counsel's choice not to pursue this issue on d irect appeal did not co n stitute 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 rather15

than circumstantial evidence (as the trial c ourt 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 a ppeal. W hether the DNA evidence precluded the tendered instruction implicates both the deficient performance prong and the prejudice prong of the ineffective assistance analysis. If the tr ial court committed no error, then there is no defective perfo r mance in failing to claim such error on appeal. Likewise, if there was no error in rejecting the instruction, there would be no resul ting prejudice from the failure to assert such an appellate claim. To evaluate the correctness of the post

- conviction court's deni al 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, apparen t ly, have our sister states

. 9

In the present case, the evidence the State prof fered 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 vi ctim 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 d irect evidence of "identity," that the d efendant was the perpetrator of the three charged offenses

— murder, rape, and criminal deviate

9 We find few cases that specifically addres s 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 ci rcumstantial without so holding), overruled on other grounds by Ex Parte Carter , 889 So. 2d 528 (Ala. 200 4); 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 Mississi ppi Supreme Court said differently: "In addition to d irect scientific ev i dence 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 defendan t's admi ssion 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 testim ony." People v. Rush , 672 N.Y.S.2d 362, 364 (N.Y. App. Div. 1998) (holding that D NA evidence reco vered 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 defe n dant found on ski mask worn during cr ime, 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 circumsta n tial).16

co n duct . Post

- Conviction Relief Hr'g Tr. at 16

– 17. On appeal, the State also argue s that DNA could be regarded as direct evidence of rape by proving "that a person had sexual intercourse with the victim." Appe l lee's Br. at 10.

The defendant contends that DNA evidence must always be circumstantial because it e stablishes only a "statistical probability" that the defendant was the donor. Appellant's Br. a t 13. This, the defen d ant 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 ev idence, and not to whether DNA evidence is direct or circumstantial. For example, if an eyewi tness 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 pe rcent" positive that it was the defendant she saw, we would not say that her testimony is circu ms tantial 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 b e lieve the eyewitness and, in so doing, what weight to give to her testimony. The eyewitness te s timony is consistent only with the "proposed conclusion" that the defendant committed the crime. Her statement that she is " ninety

- eight percent" positive o f the identification goes to the credibil i ty 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 ev idence. 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 o nly of the defendant's presence with the victim at some prior time, but only circums ta n tial as to the defendant's crim i nal 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 t he DNA ev i dence

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 o p posite sex when: (1) the other person is compelled by force or imminent threat of force; (2) the oth er 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 i nf e rence may be made

. See Ind. Code § 35

- 42

- 4

- 1(a). "D i rect evidence is a proposition which is consistent only with either the pro posed concl u sion or its contradictory; circumstantial evidence is consistent with both the proposed conclusion and its contradictory." Lyman Ray Patte r son, The Types of Evidence: An Analysis , 19 Vand. L. Rev. 1, 5

– 6 (1965). (emphasis added) . In this
cont ext, the State asserts that DNA found in the victim and matched to the defendant, if a c cepted 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 consisten t with the contradictory propos ition that the defendant and the victim engaged in consensual intercourse. 12 To the extent that the DNA provided direct evidence of the d e fendant's presence or relationship with the victim at or before the time the crimes wer e committed, it was not direct evidence of the defendant's physical conduct co m prising 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 co nduct in this case. As to both offenses, the DNA ev i dence, while consistent with a conclusion that the perpetrator of these crimes was the defendant, is simult a n eously consistent with a conclusion that the defendant was at some point in the pre s ence of th e 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 co n duct).

Application of our analysis today leads us to conclude that the DNA evidenc e in the pr esent case should be considered as circumstantial and not direct evidence of the defendant's co nduct comprising the physical component s of each of the charged criminal offense s ( actus reus )

. On the other hand, such focus upon actus reus has not been the prevailing basis of prior Indiana case law, w hich had usually found the "reasonable theory of innocence" instruction properly r ejected when any one element of a criminal offense has been proven by direct ev i dence. Under
commits rape, a Class B felony. Ind. Code § 35

- 42

- 4

- 1(a).

12 DNA evidence may no t always be circumstantial. For example, if the victim were legally i n c apable of consent, such as a "child under fou r teen 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 I nd. Code § 35

- 42

- 4

- 3 (child molesting).18

such line of authority, t he 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 identif y ing the d efendant as ha v ing a prior involvement with the victim. The existing state of the law could have led the defendant's appellate counsel to conclu de that there was little if any merit in pu r suing on appeal the refusal of the "reasonable theory of innocence" instruction. Due to past var i ations in applic ation of the "proof of guilt" language in the "reasonable theory of innocence" i n struction, the law on this issue was unfavorable to the defendant at the time of his trial and d i rect a p peal.

We cannot conc lude that the evidence before the post

- conviction court leads unerrin g ly and unmistakably to a decision contrary to the court's denial of the defendant's petition for post

conviction relief. Given the facts and the unfavorable state of the law, the defe n d ant's appellate counsel did not fail to raise a strongly availing appellate issue by failing t o challenge the trial court's rejection of t he "reason a ble theory of innocence" instruction , and thus the denial of post

conviction relief was not erron e ous.

C onclusion

We affirm the judgment denying the defendant's petition for post

- conviction relief.

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