Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 1 of 67

ATTORNEYS FOR APPELLANT

Stephen T. Owens 

Public Defender of Indiana 

Anne Murray Burgess 

Joanna Green 

Deputy Public Defenders 

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

Ian McLean 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

John R. Myers II, 

Appellant-Petitioner, 

v. 

State of Indiana, 

Appellee-Respondent 

May 28, 2015 

Court of Appeals Cause No. 

55A05-1312-PC-608 

Appeal from the Morgan Superior 

Court 

The Honorable G. Thomas Gray, 

Judge 

Cause No. 55D01-0902-PC-33 

Friedlander, Judge. 

[1] John R. Myers II appeals from the denial of his petition for post-conviction 

relief (PCR). He raises the following restated issues on appeal: 

1. Did the post-conviction court err in concluding that Myers was not 

denied the effective assistance of trial counsel? 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 2 of 67

2. Did the post-conviction court err in concluding that Myers’s due 

process rights were not violated by the State’s alleged failure to 

disclose all exculpatory evidence to the defense? 

3. Did the trial court err in concluding that Myers was not entitled to 

relief based on his claims of prosecutorial misconduct? 

[2] We affirm. 

[3] The facts underlying Myers’s conviction were set forth as follows in this court’s 

opinion arising out of his direct appeal: 

In the spring of 2000, John Myers II lived approximately seven tenths 

of a mile from the intersection of North Maple Grove Road and West 

Maple Grove Road, at 1465 West Maple Grove Road, north of 

Bloomington in Monroe County. Myers was on vacation from work 

the week of May 29 through June 2. 

On the morning of May 31, 2000, Jill Behrman, an accomplished 

bicyclist who had just completed her freshman year at Indiana 

University, left her Bloomington home to take a bicycle ride. She 

logged off of her home computer at 9:32 a.m. Behrman did not report 

to the Student Recreational Sports Center, where she was scheduled to 

work from noon to 3:00 p.m. that day, nor did she appear at a 

postwork lunch scheduled with her father and grandparents. 

Following nationwide search efforts, Behrman’s remains were 

ultimately discovered on March 9, 2003, in a wooded area near the 

intersection of Warthen and Duckworth Roads in Morgan County. 

The cause of her death was ruled to be a contact shotgun wound to the 

back of the head. 

With respect to the events surrounding Behrman’s disappearance, one 

report indicated that a young woman matching Behrman’s description 

was seen riding her bicycle north of Bloomington on North Maple 

Grove Road at approximately 10:00 a.m. the morning of May 31. A 

tracking dog later corroborated this report. While another report 

placed Behrman south of Bloomington at 4700 Harrell Road at 

approximately 9:38 a.m., some authorities later discounted this report 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 3 of 67

due to her log-off time of 9:32 a.m. and the minimum fourteen minutes 

it would take to bicycle to Harrell Road. The tracking dog did not 

detect Behrman’s scent trail south of Bloomington. 

At approximately 8:30 a.m. on the morning of May 31, 2000, in the 

North Maple Grove Road area, a witness saw a white “commercial 

looking” Ford van without identification on its doors or sides drive 

slowly past his driveway on North Maple Grove Road, heading south. 

Two men were inside the van. This witness saw the van two 

additional times that morning by approximately 9:00 a.m. and later 

identified the van as “exactly like” a Bloomington Hospital van. 

At some point before noon on May 31, 2000, another witness saw a 

bicycle later determined to be Behrman’s lying off of the east side of 

North Maple Grove Road near the intersection of North Maple Grove 

Road and West Maple Grove Road. The location of the bicycle was 

approximately one mile from Myers’s residence and ten and one-half 

miles from Behrman’s house. 

On May 31, the date of Behrman’s disappearance, two witnesses 

separately noted that the windows in Myers’s trailer were covered, 

which was unusual. One of these witnesses also observed that Myers’s 

car was parked fifty yards from its normal location and remained out 

of sight from the road for approximately three days. Myers told this 

witness that he had parked his car in that secluded spot because he did 

not want anyone to know he was home. 

Myers’s account of his activities during his vacation week of May 29 

through June 2 was reportedly that he was “here and there.” Myers’s 

employer at the time was the Bloomington Hospital warehouse, where 

he had access to two white panel Ford vans. Besides being “here and 

there,” Myers indicated that he had been mostly at home, that he had 

gone to a gas station, and that he had gone to Kentucky Kingdom but 

found it was closed. Myers additionally stated that he and his 

girlfriend, Carly Goodman, had cancelled their plans to go to Myrtle 

Beach, South Carolina, and to Kings Island, Ohio, that week. Phone 

calls made from Myers’s trailer on May 31 were at the following times: 

9:15 a.m.; 9:17 a.m.; 9:18 a.m.; 10:37 a.m.; 10:45 a.m.; and 6:48 p.m. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 4 of 67

Myers’s mother, Jodie Myers, testified that she had made those calls.[1] 

The calls were to drive-in theaters and various state parks. 

Myers was reportedly almost hysterical on May 31 and spoke of 

leaving town and never coming back. Myers’s aunt, Debbie Bell, 

observed that Myers had been very depressed in the preceding month 

and believed that this was due to problems with his girlfriend. In late 

April 2000, Myers had called Bell because he had been having 

problems with his girlfriend and felt like “a balloon full of hot air about 

to burst.” 

Carly Goodman was Myers’s girlfriend beginning in approximately 

late October 1999. In March of 2000, Myers took Goodman for a long 

drive through Gosport, “over a bridge where there was a creek and 

into some woods.” Myers pulled his car into a clearing in the woods 

where the two of them argued, which scared Goodman. Although it 

was nighttime, Goodman observed the appearance of this clearing 

from the car’s headlights. In late April or early May of 2000, 

Goodman broke off her relationship with Myers. Goodman denied 

that she and Myers had ever made plans to go to Myrtle Beach or to 

Kings Island the week of May 29. 

On June 5, 2000, Bell again spoke with Myers. Myers mentioned that 

a girl had been abducted in the area, and he was afraid he would be 

blamed for it. Myers further stated that the girl’s bicycle had been 

found about a mile from his house and that “they blame [him] for 

everything.” Myers additionally asserted, “[T]hey haven’t found her 

body yet” and guessed that the girl was dead. In that same 

conversation, Myers indicated that he had been stopped by a 

 

1

 Myers asserts that this is an inaccurate reflection of the record. After reviewing Jodie Myers’s testimony, 

we agree. Although a portion of her testimony, when viewed in isolation, appears to support the assertion 

that she made the phone calls on May 31, 2000, her testimony when read in its entirety reveals otherwise. 

Instead, Jodie testified that after obtaining her son’s telephone records for that date, she called the listed 

numbers to determine to whom they belonged. It is apparent to us that the jury was not misled into believing 

that Jodie had placed the phone calls, and the State made no such argument. It is also apparent that this 

court’s misunderstanding of the record had no impact on its resolution of Myers’s direct appeal. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 5 of 67

roadblock and was “scared” of roadblocks, but he later changed his 

mind, laughed, and said he was not really “scared.” 

Following a tip due to this conversation, on June 27, 2000, Detective 

Rick Crussen of the Bloomington Police Department interviewed 

Jodie and Myers’s father, John Myers Sr., at their residence at 3909 

West Delap Road. The following day, Detective Crussen interviewed 

Myers. 

On June 27, 2000, immediately after Detective Crussen interviewed 

Myers’s parents and the day before he interviewed Myers, Myers 

called his grandmother, Betty Swaffard, and asked to borrow $200. 

Myers told Swaffard he was unable to come to her house for the 

money because there were roadblocks on Maple Grove Road, and he 

did not want to leave his home. Myers additionally stated that he was 

a suspect in the Jill Behrman disappearance. Myers did not come to 

Swaffard’s home for the money. 

In July 2000, Bell noticed that John Myers Sr. was unusually nervous 

and agitated when in Myers’s presence. Sometime in approximately 

August of 2000, Myers’s brother, Samuel, who owned a twelve-gauge 

shotgun and had stored it at his parents’ house on Delap Road since 

approximately 1997, noted that the gun was missing. 

Myers raised the topic of Behrman’s disappearance multiple times and 

in multiple contexts following her disappearance. Before Detective 

Crussen interviewed him, Myers falsely stated to his Bloomington 

Hospital supervisor that police had questioned him in connection with 

Behrman’s disappearance because her bicycle was found close to his 

home. Also in June of 2000, Myers stated to a co-worker that he 

wondered whether authorities had investigated a barn in a field located 

on Bottom Road off of Maple Grove Road. Additionally, some weeks 

after Behrman disappeared, Myers told another co-worker during a 

delivery run that Behrman’s bicycle was found in his neighborhood, 

and that Behrman was probably abducted near that site. Later in 2000 

or 2001, while driving with his then-girlfriend, Kanya Bailey, Myers 

directed Bailey’s attention to a location a short distance from his 

mother’s residence and stated he had found Behrman’s bicycle there. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 6 of 67

In the late spring to late summer of 2001, Myers again raised the topic 

of Behrman’s disappearance with another co-worker. As the two were 

driving on Bottom and Maple Grove Roads, Myers pointed out where 

he lived and stated that Behrman’s bicycle had been found close to 

where he used to live. A short time later, while on Maple Grove 

Road, Myers stated that if he was ever going to hide a body he would 

hide it in a wooded area up “this way,” pointing north. On another 

occasion, Myers stated to this co-worker that he knew of someone in 

Florida who had Behrman’s identification card or checkbook. 

Sometime in November or December of 2001, Myers raised the topic 

of Behrman’s disappearance with a family member, indicating his bet 

that Behrman would be found in the woods. During this conversation, 

Myers further indicated his familiarity with the Paragon area and with 

Horseshoe Bend, where he liked to hunt. 

Also in 2001, Myers stated to his mother, Jodie, that he had been 

fishing in a creek and had found a pair of panties and a bone in a tree. 

Jodie suggested that this might be helpful in the Behrman case, and 

Myers agreed to call the FBI. FBI Agent Gary Dunn later returned the 

call and left a message. Myers told Jodie that they should save the 

answering machine tape in case they were questioned. 

Sometime in 2002, Wendy Owings confessed to Behrman’s murder, 

claiming that she, Alicia Sowders-Evans, and Uriah Clouse struck 

Behrman with a car on Harrell Road, stabbed her with a knife in her 

chest and heart, wrapped her body in plastic tied with bungee cords, 

and disposed of her body in Salt Creek. In September 2002, 

authorities drained a portion of Salt Creek. They found, among other 

things, a knife, a bungee cord, and two sheets of plastic. Owings later 

recanted her confession. 

On March 27, 2002, Myers, who at the time was in the Monroe 

County Jail on an unrelated charge, told Correctional Officer Johnny 

Kinser that he had found some letters in some food trays one morning 

that he believed Kinser should look at, apparently in connection with 

the Behrman disappearance. Myers said he felt bad about what had 

happened to that “young lady” and that he wished to help find her if 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 7 of 67

he could. Myers additionally compiled a list of places potentially 

providing clues to Behrman’s location. Indiana State Police Trooper 

James Minton investigated the list, including gravel pits off of Texas 

Ridge Road between Stinesville and Gosport. A route from Gosport 

to the intersection of Warthen and Duckworth Roads in Morgan 

County passes by Horseshoe Bend.[2]

On March 9, 2003, Behrman’s remains were discovered by a hunter in 

a wooded area near the intersection of Warthen and Duckworth Roads 

in Morgan County approximately thirty-five to forty yards from a 

clearing in the timber north of Warthen Road. Authorities recovered 

approximately half of the bones in Behrman’s skeleton. No soft tissue 

remained. Six rib bones were among the bones missing from her 

skeleton. There was no evidence of stab or knife wounds, nor was 

there evidence of blunt force trauma. Investigators recovered a 

shotgun shell wadding from the scene, as well as 380 number eight 

shot lead pellets. The wadding found at the scene was typical of a 

twelve-gauge shotgun shell wadding. The cause of Behrman’s death 

was ruled to be a contact shotgun wound to the back of the head. 

Scattered skull fragments and the presence of lead pellets in a variety 

of places, together with certain soil stains consistent with body 

decomposition, suggested that after being shot, Behrman’s body had 

come to rest and had decomposed at the spot where it was found. No 

clothing was found at the scene. There is nothing in the record to 

clarify whether Behrman’s clothing, if it had been left at the scene, 

would or would not have completely disintegrated prior to her body 

being found. 

In March 2003, Myers told another co-worker, who had brought a 

newspaper to work announcing the discovery of Behrman’s remains, 

that the woods pictured in the newspaper article looked familiar to 

him, and that he had hunted there before. According to this coworker, the woods pictured in the newspaper article did not appear 

 

2

 Myers asserts that this court’s opinion in his direct appeal reflects a misunderstanding concerning the 

content of the list of locations Myers compiled. Myers apparently believes that the opinion stated that the 

note listed a route to the site at which Behrman’s remains were eventually discovered. The opinion contains 

no such assertion. Instead, the court noted that a route between Gosport, near one of the places on the list, 

and the area where Behrman’s remains were later found passes by Horseshoe Bend, an area where Myers 

liked to hunt. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 8 of 67

distinctive. Myers also stated that it was good that Behrman had been 

found and that he was surprised that he had not been contacted 

because he knew the people who police thought had committed the 

crime. Myers knew Wendy Owings, who had falsely confessed to the 

crime, as well as Uriah Clouse and Alicia Sowders-Evans. Myers had 

a “cocky” tone of voice when he made these comments, according to 

the co-worker. 

More than a year later, in November 2004, Myers called his 

grandmother, Swaffard. Myers, who was upset and stated that he 

needed time to himself, said to Swaffard, “Grandma, if you just knew 

the things that I've got on my mind. [I]f the authorities knew it, I’d be 

in prison for the rest of my life.” Myers further stated that his father, 

John Myers Sr., “knew” and had “[taken] it to the grave with him.” 

Subsequently, when Myers arrived at Swaffard’s house, he said with 

tears in his eyes, “Grandma, I wish I wasn’t a bad person. I wish I 

hadn’t done these bad things.” 

Indiana State Police Detectives Tom Arvin and Rick Lang interviewed 

Myers again on May 2, 2005. During this taped interview, Myers 

denied having told anyone in his family that he was “scared” of the 

roadblocks or that he had talked to anyone besides the police about the 

case. Also in May of 2005, Myers, who was again in the Monroe 

County Jail on an unrelated charge, mentioned to his bunkmate that 

the state police were investigating him because Behrman’s bicycle had 

been found in the vicinity of his house. Myers made approximately 

three or four references to Behrman’s bicycle and was nervous and 

pacing at the time. During that conversation, Myers, who was also 

angry, made reference to the “bitch,” and stated to this bunkmate, “[I]f 

she [referring to Behrman] wouldn’t have said anything, . . . none of 

this would have happened.” 

On February 17, 2006, Detective Lang took Goodman on a thirty-sixmile drive north of Myers’s home on Maple Grove Road and into rural 

Morgan County. Goodman recognized a clearing in the woods near 

the corner of Warthen and Duckworth Roads, approximately thirtyfive to forty yards from where Behrman’s remains were discovered, as 

the place that Myers had driven her in March 2000. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 9 of 67

Myers v. State, 887 N.E.2d 170, 176-80 (Ind. Ct. App. 2008) (footnotes and 

citations to the record omitted), trans. denied. A grand jury indicted Myers for 

Behrman’s murder in April 2006. A twelve-day jury trial commenced on 

October 16, 2006, at the conclusion of which Myers was found guilty as 

charged and sentenced to a term of sixty-five years. This court affirmed 

Myers’s conviction on direct appeal and our Supreme Court denied transfer. 

[4] Myers filed a pro se PCR petition on February 2, 2009. Counsel subsequently 

entered appearances on Myers’s behalf and amended the petition. An 

evidentiary hearing was held over several days in April and May 2013, at the 

conclusion of which the post-conviction court took the matter under 

advisement. The post-conviction court issued its written order denying Myers’s 

PCR petition on November 18, 2013. Myers now appeals. 

[5] In a post-conviction proceeding, the petitioner bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Bethea v. State, 983 

N.E.2d 1134 (Ind. 2013). “When appealing the denial of post-conviction relief, 

the petitioner stands in the position of one appealing from a negative 

judgment.” Id. at 1138 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 

2004)). In order to prevail, the petitioner must demonstrate that the evidence as 

a whole leads unerringly and unmistakably to a conclusion opposite the postconviction court’s conclusion. Bethea v. State, 983 N.E.2d 1134. Although we 

do not defer to a post-conviction court’s legal conclusions, we will reverse its 

findings and judgment only upon a showing of clear error, i.e., “that which 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 10 of 67

leaves us with a definite and firm conviction that a mistake has been made.” Id.

at 1138 (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)). 

1. 

[6] Myers first argues that his trial counsel were constitutionally ineffective.3 A 

petitioner will prevail on a claim of ineffective assistance of counsel only upon a 

showing that counsel’s performance fell below an objective standard of 

reasonableness and that the deficient performance prejudiced the petitioner. 

Bethea v. State, 983 N.E.2d 1134. To satisfy the first element, the petitioner 

must demonstrate deficient performance, which is “representation that fell 

below an objective standard of reasonableness, committing errors so serious 

that the defendant did not have the ‘counsel’ guaranteed by the Sixth 

Amendment.” Id. at 1138 (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 

2002)). To satisfy the second element, the petitioner must show prejudice, 

which is “a reasonable probability that, but for counsel’s errors, the result of the 

proceeding would have been different.” Id. at 1139. “A reasonable probability 

is one that is sufficient to undermine confidence in the outcome.” Kubsch v. 

State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 

U.S. 668, 694 (1984)). 

[7] There is a “strong presumption” that counsel rendered adequate service. Bethea 

v. State, 983 N.E.2d at 1139. “We afford counsel considerable discretion in 

 

3

 Myers was represented at trial by the father-son defense team of Hugh and Patrick Baker, with Patrick 

Baker acting as lead counsel. Except where we find it necessary to differentiate between the two, we will 

refer to both Bakers collectively as “trial counsel.” 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 11 of 67

choosing strategy and tactics, and ‘[i]solated mistakes, poor strategy, 

inexperience, and instances of bad judgment do not necessarily render 

representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012) 

(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)) (alteration in 

original). Indeed, “strategic choices made after thorough investigation of law 

and facts relevant to plausible options are virtually unchallengeable; and 

strategic choices made after less than complete investigation are reasonable 

precisely to the extent that reasonable professional judgments support the 

limitations on investigation.” Strickland v. Washington, 466 U.S. at 690-91. 

Moreover, because a petitioner must prove both deficient performance and 

prejudice in order to succeed, the failure to prove either element defeats the 

claim. See Young v. State, 746 N.E.2d 920 (Ind. 2001) (holding that because the 

two elements of Strickland are separate and independent inquiries, the court 

may dispose of the claim on the ground of lack of sufficient prejudice if it is 

easier). Myers has raised numerous claims of ineffective assistance of trial 

counsel. We address them each in turn. 

A. 

[8] Myers raises a number of arguments with respect to the admission into evidence 

of a redacted version of his May 2, 2005 police interrogation. First, he argues 

that trial counsel were ineffective for agreeing to the redactions because 

portions of the statement in which he denied any involvement in Behrman’s 

disappearance and murder were excised, and those statements would have been 

helpful to the defense. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 12 of 67

[9] The interrogation in question was conducted in two parts. In the first part of 

the interview, Myers was questioned by Indiana State Police Detectives Rick 

Lang and Tom Arvin, and Myers repeatedly denied any involvement in or 

knowledge of Behrman’s disappearance and murder. Myers was then arrested 

on a separate charge of receiving stolen property, booked, fingerprinted, and 

swabbed for DNA. Thereafter, a second, post-arrest interview was conducted 

by Detective Jeff Heck, during which Myers again denied any involvement in 

Behrman’s disappearance and murder. The State, defense, and trial court spent 

a substantial amount of time discussing redactions of the interrogation. 

Ultimately, the jury heard an audio recording of and was provided with a 

written transcript of the partially redacted pre-arrest interview; the post-arrest 

interview was omitted entirely. Myers does not appear to object to the manner 

in which the pre-arrest interview was redacted. Instead, he argues that the jury 

should also have heard the post-arrest interview. 

[10] We have reviewed both the redacted and unredacted interrogation, and Myers 

has not established either deficient performance or prejudice stemming from the 

redaction of the post-arrest interview. The post-arrest interview contained 

several long monologues in which the interviewer attempted to appeal to 

Myers’s moral sensibilities, followed by relatively short responses from Myers. 

Some of these monologues spanned several pages of transcript and made 

specific reference to Myers’s past substance abuse and recovery process. The 

trial court described the post-arrest interview as largely filled with “a lot of 

irrelevant gibberish” that “add[ed] nothing to the factual determination in this 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 13 of 67

case.” Trial Transcript at 26. We think this is a fair characterization. Although 

Myers continued to proclaim his innocence in the post-arrest interview, his 

denials of involvement were merely cumulative of his previous statements in 

the pre-arrest interview, which the jury heard. Myers also made statements in 

the post-arrest interview that the jury could have viewed as flippant under the 

circumstances. For example, at one point, Myers stated, “you know, as we’re 

sitting there talking, I’m thinking cigarettes, I’m thinking coffee[.]” PCR Exhibit

305A at 154. It was not deficient performance for trial counsel to agree to 

redact the post-arrest interview in its entirety because it could have harmed 

Myers and, in any event, would have added little, if anything, to the pre-arrest 

interview. For the same reason, Myers was not prejudiced by the redaction. 

[11] Myers also argues that counsel performed deficiently by failing to object to 

portions of Detective Arvin’s and Detective Lang’s testimony concerning the 

May 2, 2005 interrogation. Specifically, Myers notes that counsel did not 

object to Detective Arvin’s testimony that Myers’s demeanor during the 

interview was “nonchalant” and “cavalier” and that his answers appeared to be 

rehearsed. Trial Transcript at 2207. Additionally, on cross-examination by trial 

counsel, Detective Arvin asserted that Myers never “adamantly” or “expressly” 

denied guilt. Id. at 2211-12. In response to a jury question, Detective Arvin 

again testified that Myers’s demeanor was nonchalant and cavalier. 

Additionally, Detective Lang testified that he did not expect Myers to confess to 

the murder based on his “prior intelligence” and because “murder is one of the 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 14 of 67

least things someone is going to confess to.” Id. at 2380-81. According to 

Myers, these statements constituted inadmissible opinion testimony. 

[12] The sum total of Myers’s argument that this testimony was inadmissible is 

contained in the following conclusory statement in his appellant’s brief: “The 

opinion evidence offered by [Detective] Arvin was objectionable, irrelevant and 

prejudicial. Ind. Evidence Rule 701; Hensley v. State, 448 N.E.2d 665, 667 (Ind. 

1983) (lay witnesses may not give opinions where jury is well qualified to form 

an opinion).” Appellant’s Brief at 28-29. Assuming arguendo that the testimony 

was objectionable, Myers has not established prejudice. With respect to 

Detective Arvin’s testimony that Myers never adamantly or expressly denied 

guilt, trial counsel went on to elicit testimony clarifying that Myers had, in fact, 

denied involvement in Behrman’s disappearance and murder “numerous” 

times. Trial Transcript at 2211. With respect to the characterizations of Myers’s 

responses as rehearsed and his demeanor as nonchalant and cavalier, the jury 

heard the audio recording of the redacted interview and received a written 

transcript thereof, and was therefore able to draw its own conclusions as to 

whether Myers’s responses and tone were inappropriately casual. Myers has 

made no attempt to explain how Detective Lang’s testimony that he did not 

expect Myers to confess prejudiced him, and we are unable to imagine how it 

might have done so. Myers has not established that the outcome of the trial 

would have been different had his trial counsel objected to this testimony. 

[13] Finally, Myers takes issue with trial counsel’s failure to challenge the State’s 

characterization of the May 2, 2005 interrogation in its opening statement and 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 15 of 67

closing argument. Specifically, Myers takes issue with the prosecutor’s 

assertion in opening statements that Myers’s demeanor was nonchalant—but, 

as we explained above, the jury heard Myers’s interview and was able to draw 

its own conclusions in this regard. Myers also notes that the State used a 

Powerpoint slide presentation in its closing argument, and several of the slides 

included claims that Myers never denied guilt. The presentation consisted of 

over sixty slides, five of which bore the subheading “When pressed Defendant 

never denies guilt”, followed by excerpts from the transcript of Myers’s 

interrogation. PCR Exhibit 132. We note, however, that the slide presentation 

was not admitted as an exhibit at trial; instead, it was used by the State solely as 

a visual aid during closing arguments. Moreover, our review of the trial 

transcript reveals that the State did not verbally assert in its closing argument 

that Myers never denied guilt. The defense, on the other hand, emphasized in 

its closing argument that Myers repeatedly denied guilt during his police 

interrogation. Most importantly, the jury was provided a transcript and heard 

an audio tape of the interrogation, during which Myers repeatedly denied any 

involvement in Behrman’s disappearance and murder. Under these facts and 

circumstances, we cannot conclude that Myers has established that he suffered 

prejudice as a result of trial counsel’s failure to object to the use of the slides. 

B. 

[14] Next, Myers argues that trial counsel Patrick Baker was ineffective for telling 

the jury in opening statements that the defense would present certain evidence, 

and then failing to do so. Specifically, during opening statements, Patrick 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 16 of 67

Baker stated that during a search for Behrman shortly after her disappearance, a 

bloodhound alerted to the residence of Brian Hollars, who trial counsel had 

identified as an alternative suspect, but that the dog was called off. Counsel 

also told the jury that there was evidence that Hollars and Behrman were seen 

arguing days before she disappeared. Trial counsel did not present evidence to 

support these claims. 

[15] The parties acknowledge that Patrick Baker was professionally disciplined for, 

among other things, stating that a dog had alerted at Hollars’s home. See In re 

Baker, 955 N.E.2d 729 (Ind. 2011). Our Supreme Court found that “[t]hese 

statements were false and Respondent should have known that no evidence 

would be admitted at trial to support them.” Id. at 729. The court noted, 

however, that there was no allegation in the disciplinary proceedings that 

counsel had provided substandard services to Myers or that Myers or the State 

were prejudiced by the misrepresentation in his opening statement. We will 

presume, however, that an attorney who tells the jury that he will present 

evidence that he either knows or should know will not be presented has acted 

unreasonably for the purposes of the Strickland analysis. Thus, at least with 

respect to trial counsel’s statement that a search dog alerted to Hollars’s 

residence, we accept Myers’s argument that trial counsel’s performance was 

deficient. We are left to consider whether the statements prejudiced Myers 

within the meaning of Strickland. 

[16] In support of his argument that trial counsel’s unfulfilled promise in this regard 

amounted to ineffective assistance of counsel, Myers directs our attention to 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 17 of 67

two decisions of the United States Court of Appeals for the Seventh Circuit: 

United States ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003) and Barrow 

v. Uchtman, 398 F.3d 597 (7th Cir. 2005). As this court has explained, 

“although decisions of the Seventh Circuit ‘are entitled to our respectful 

consideration,’ its decisions on questions of federal law are not binding on state 

courts.” Jackson v. State, 830 N.E.2d 920, 921 (Ind. Ct. App. 2005). Even so, 

we conclude that the cases cited do not mandate the conclusion that Myers’s 

trial counsel was ineffective. 

[17] In United States ex rel. Hampton v. Leibach, 347 F.3d 219, the Seventh Circuit 

found that Hampton’s trial counsel was ineffective for failing to investigate 

exculpatory eyewitnesses to the crime. The court also considered Hampton’s 

argument that his trial counsel was ineffective for failing to fulfill two promises 

made during opening statement. First, Hampton’s trial counsel stated that 

Hampton would testify that he was not involved in the gang-related attack for 

which he was on trial, and second, that the evidence would show that Hampton 

was not a member of or involved with any gang. 

[18] The court explained that unforeseeable developments at trial may justify 

reversals of this nature, but that “when the failure to present the promised 

testimony cannot be chalked up to unforeseeable events, the attorney’s broken 

promise may be unreasonable, for ‘little is more damaging than to fail to 

produce important evidence that had been promised in an opening.’” Id. at 257 

(quoting Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988)). The court 

concluded that to the extent trial counsel had legitimate reasons to conclude 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 18 of 67

that Hampton should not testify, those reasons should have been obvious from 

the outset of the case. In reaching its conclusion that counsel’s performance 

was unreasonable, the court emphasized the fact that trial counsel had explicitly 

promised the jury that Hampton himself would testify, reasoning that 

“Hampton’s unexplained failure to take the witness stand may well have 

conveyed to the jury the impression that in fact there was no alternate version 

of the events that took place, and that the inculpatory testimony of the 

prosecution’s witnesses was essentially correct.” Id. at 258. 

[19] The court also found trial counsel’s failure to present testimony that Hampton 

was not involved with a gang unreasonable, noting that such evidence would 

bear on the likelihood that he had participated in a crime with “unmistakable 

gang overtones.” Id. at 259. Testimony of this nature was readily available to 

counsel; he simply failed to pursue it. The court concluded that counsel’s 

failure to present such evidence “could only have undercut the credibility of the 

defense with the jury.” Id. With respect to the prejudice element of the 

Strickland standard, however, the court concluded that trial counsel’s “breach of 

the promises he made in the opening statement was not so prejudicial that it 

would support relief in and of itself[.]” Id. at 260. Rather, the breach “serve[d] 

to underscore the more important failure to investigate exculpatory occurrence 

witnesses.” Id. 

[20] In Barrow v. Uchtman, 398 F.3d 597, the Seventh Circuit again encountered a 

claim that counsel was ineffective for failing to deliver on promises made during 

opening statements. In Barrow, trial counsel in opening statement informed the 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 19 of 67

jury that “we will tell you about” the crime and the defendant’s denial of 

involvement. Id. at 606 n.7. During the trial, however, Barrow’s counsel 

presented no evidence whatsoever in defense. The court concluded that Barrow 

had not established that he was prejudiced by trial counsel’s failure to deliver on 

his promise to present exculpatory evidence. In reaching this conclusion, the 

court carefully distinguished Hampton, noting that in that case, the court had 

“placed special importance on the fact that trial counsel had specifically 

promised the jury that the defendant would testify himself.” Id. at 606 (emphasis 

in original). Barrow’s counsel, on the other hand, made no explicit promise 

that Barrow would testify; rather, he promised to present other exculpatory 

evidence. The court also noted that the nature of the evidence against Barrow 

was qualitatively different from that in Hampton. In Hampton, the sole evidence 

against the defendant was eyewitness testimony, but the primary evidence 

against Barrow was his own confession. Under these circumstances, Barrow’s 

personal testimony was far less critical than Hampton’s. Moreover, the content 

of Barrow’s proposed testimony was unlikely to have altered the ultimate 

verdict given the abundant evidence against him. Thus, the court concluded, 

Barrow could not establish that he was prejudiced by his trial counsel’s 

unfulfilled promises. 

[21] Like the court in Barrow, we also conclude that Myers was not prejudiced by 

trial counsel’s unfulfilled promises. First, we note that trial counsel made no 

promise that Myers himself would testify. Patrick Baker’s representations that 

evidence would be presented that a dog had followed Behrman’s scent to 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 20 of 67

Hollars’s residence and that Hollars and Behrman had been seen arguing 

shortly before her disappearance are more akin to the promises of trial counsel 

in Barrow to present exculpatory evidence. 

[22] Moreover, although trial counsel failed to deliver on these specific promises, 

other evidence casting suspicion on Hollars was presented to the jury. 

Evidence was presented establishing that Hollars had hired Behrman to work at 

Indiana University’s Student Recreational Sports Center (SRSC) and that 

Hollars and Behrman shared an interest in cycling. In fact, Hollars had given 

Behrman his telephone number because he was trying to sell a bicycle and 

believed someone in Behrman’s cycling club might be interested. Becky 

Shoemake, who was Behrman’s cousin, roommate, and closest friend on 

campus, testified that Behrman had confided in her that an older man had 

asked her out and that Behrman was concerned because the man was old 

enough to drink, but Behrman was not. Shoemake did not know the man’s 

identity or if Behrman accepted the date. Detective Lang testified that 

Behrman’s mother had told him that Behrman was probably sexually active 

during her second semester. Trial counsel admitted into evidence condoms, a 

pregnancy test, a package of emergency contraceptive pills, and several books 

on pregnancy found in Behrman’s room. Behrman’s mother told Detective 

Crussen that Hollars had called the Behrman residence three or four times on 

June 1, 2000, which she found strange. Evidence was also presented that 

Hollars was married and that he owned a twelve-gauge shotgun and loaded his 

own shotgun shells using number eight shot, the same size used in Behrman’s 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 21 of 67

murder. Importantly, the jury was presented with evidence that a bloodhound 

tracked Behrman’s scent near Hollars’s residence. Hollars testified that he was 

questioned by police on the day of Behrman’s disappearance and again by 

Detective Arvin in 2003, and he believed that he was under suspicion. 

[23] From the jurors’ questions, it is clear that the jury considered the possibility of 

Hollars’s involvement in Behrman’s murder. A juror asked Behrman’s mother 

questions about when Behrman first met Hollars. Additionally, a juror asked 

Wes Burton, Behrman’s supervisor at the SRSC, whether Hollars was 

romantically interested in Behrman. The jurors also wanted to know whether 

written records could corroborate Hollars’s and Burton’s recollections that they 

had been working together at the SRSC at the time Behrman went missing. A 

juror also asked if Hollars had left the SRSC at any time on May 31, 2000, and 

Hollars admitted that he had left the premises to check on athletic fields. 

[24] The jurors also took note of the possibility that Behrman was pregnant. A juror 

asked Behrman’s mother if Behrman had appeared to be sick, nauseated, 

fatigued, or lightheaded, and Behrman’s mother recalled that Behrman had felt 

poorly one morning in May. A juror also asked Behrman’s mother if she 

believed Behrman would have confided in her if she had been pregnant. The 

jurors did not, however, question the canine handler who testified concerning 

the bloodhound search conducted a few days after Behrman’s disappearance 

about trial counsel’s claim that a dog had alerted at Hollars’s residence but been 

pulled off. We therefore conclude that counsel has not established prejudice 

stemming from trial counsel’s failure to fulfill his promise to present evidence 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 22 of 67

that the bloodhound alerted to Hollars’s residence and that Hollars was seen 

arguing with Behrman shortly before her disappearance. 

[25] Myers also argues that Patrick Baker was ineffective for failing to deliver on his 

claim in opening statement that Carl Salzman, the Monroe County Prosecutor 

at the time of Behrman’s disappearance, would testify that Myers was never a 

suspect and that Owings, Sowders-Evans, and Clouse were his primary 

suspects. In support of this argument, Myers directs our attention to Salzman’s 

deposition testimony, taken just days before trial, in which Myers claims 

Salzman “said exactly the opposite[.]” Appellant’s Brief at 31. 

[26] Myers overstates Salzman’s deposition testimony. Salzman testified in his 

deposition that his office investigated Behrman’s disappearance until her 

remains were discovered in Morgan County, at which time the investigation 

was turned over to Morgan County officials. Salzman testified that during the 

Monroe County investigation, he never filed charges against anyone in 

Behrman’s disappearance. Salzman was presented with a probable cause 

affidavit for Wendy Owings, and he testified that the plan was to use the charge 

to get to Sowders-Evans and Clouse. Salzman declined to file charges against 

Owings because he did not believe the evidence was sufficient. Salzman was 

never presented with a probable cause affidavit for Myers. 

[27] Salzman testified further that after Morgan County took over the investigation, 

he continued to receive tips from members of the community and jail inmates, 

which he would pass on to Detective Lang. One such tip came from Betty 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 23 of 67

Swaffard, Myers’s grandmother, who told Salzman that Myers had been 

behaving strangely at the time of Behrman’s disappearance. Salzman found 

Swaffard to be credible and her story to be compelling, so he passed it on to 

Detective Lang and urged him to investigate further. Thus, from Salzman’s 

testimony, it is apparent that Myers was not presented to Salzman as a suspect 

during Salzman’s official investigation as the Monroe County Prosecutor. 

While it appears that Salzman eventually came to personally suspect Myers 

based on Swaffard’s testimony, this occurred well after his official involvement 

in the case ended. During the Monroe County investigation, the only person 

Salzman considered charging was Wendy Owings. Thus, while Patrick Baker’s 

assertion that Myers was not one of Salzman’s suspects could have been 

clearer, it was not demonstrably false. 

[28] Nevertheless, because Salzman did not testify at trial, Patrick Baker’s promise 

concerning the substance of his testimony necessarily went unfulfilled. We 

note, however, that at the PCR hearing, Myers elicited no testimony from trial 

counsel concerning the failure to call Salzman as a witness. Because Myers has 

made no attempt to discount the possibility that trial counsel made a strategic 

decision not to call Salzman to testify, he has not satisfied his burden of 

establishing deficient performance on this issue. See United States ex rel. Hampton 

v. Leibach, 347 F.3d 219 (explaining that unexpected developments at trial may 

justify an attorney’s decision not to present evidence promised in opening 

statements); Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005) 

(explaining that “an action or omission that is within the range of reasonable 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 24 of 67

attorney behavior can only support a claim of ineffective assistance if that 

presumption is overcome by specific evidence as to the performance of the 

particular lawyer”), trans. denied. Nor has he established sufficient prejudice to 

justify relief on this basis. The jury was presented with ample evidence that the 

initial investigation focused on Owings, Sowders-Evans, and Clouse, and that 

Myers was not developed as the primary suspect until much later. Under these 

facts and circumstances, we cannot conclude that trial counsel’s failure to elicit 

testimony from Salzman on this issue had an appreciable impact on the jury. 

C. 

[29] Next, Myers argues that trial counsel were ineffective for failing to adequately 

undermine the State’s theory that Behrman had ridden her bicycle north on 

North Maple Grove Road, i.e., in the direction of Myers’s residence, on the 

date she disappeared. According to Myers, it was crucial for the defense to 

establish that Behrman took a route south of Bloomington that morning 

because if she did so, phone records placing Myers at his residence that 

morning would have exonerated him. 

[30] Myers’s arguments on this issue presume that the only reasonable strategy trial 

counsel could have pursued was one that depended heavily on establishing that 

Behrman rode south rather than north on the date of her disappearance. But 

trial counsel were not limited to presenting a single theory of defense. Indeed, 

in a case such as this, based solely on circumstantial evidence, the most 

advantageous approach may be to establish reasonable doubt by presenting 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 25 of 67

multiple possible alternative theories of the crime that point away from the 

accused’s guilt. As the U.S. Supreme Court has explained, “[t]o support a 

defense argument that the prosecution has not proved its case it sometimes is 

better to try to cast pervasive suspicion of doubt than to strive to prove a 

certainty that exonerates.” Harrington v. Richter, 562 U.S. 86, 109 (2011). 

[31] At the PCR hearing, when asked what he wanted the jury to believe concerning 

Behrman’s bicycle route, Patrick Baker initially stated that he “didn’t want her 

going north.” PCR Transcript at 598. He went on to clarify, however, that he 

had “two theories, a southern route and a northern route”. Id. Specifically, he 

testified as follows: 

We wanted the jury to believe that she couldn’t have made it to 

[Myers’s] house and back in time for work. So I don’t know if we 

differentiated between the southern route and maybe partially of the 

northern route but we wanted the jury to believe that she couldn’t have 

ridden to his house and back. 

Id. at 598-99. Thus, it was not trial counsel’s strategy to eliminate the 

possibility that Behrman had ridden north—rather, trial counsel sought to 

establish that Behrman would not have followed the north route all the way to 

Myers’s residence in light of her schedule that day. 

[32] We cannot conclude that trial counsel’s decision to pursue a defense theory that 

allowed for the possibility that Behrman had ridden north was unreasonable. 

As an initial matter, we note that trial counsel presented evidence supporting 

the theory that Behrman had ridden south. Trial counsel elicited testimony that 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 26 of 67

Maral Papakhian, a high school classmate of Behrman’s, had reported seeing 

Behrman riding her bike on Harrell Road, i.e., the southern route, on the 

morning of her disappearance. The jury was also presented with evidence of 

Owings’s confession, in which she stated that she and Sowders-Evans had been 

passengers in Clouse’s vehicle when he struck Behrman and abducted her on 

Harrell Road. Additionally, in both opening statements and closing arguments, 

trial counsel argued that the evidence presented supported a conclusion that 

Behrman had ridden south. 

[33] We also note, however, that trial counsel’s Hollars theory was premised in part 

on the fact that a bloodhound had scented Behrman on the northern route near 

Hollars’s residence. Thus, presenting a theory of defense that depended on 

proving to a certainty that Behrman had ridden south would have undermined 

this alternative theory. Moreover, there was other evidence that Behrman had 

ridden north. Robert England testified that he saw a cyclist matching 

Behrman’s description riding north on Maple Grove Road either at 10:00 a.m. 

on the day Behrman disappeared or at 9:00 a.m. the next day. Moreover, 

Behrman’s bike was discovered on the north route, less than one mile from 

Myers’s residence. Although it has been suggested that Behrman could have 

taken the south route, been abducted and subdued there, and her bike dumped 

on the north route, the timeline for such a scenario is tight. Behrman logged off 

of her computer at 9:32 a.m. and her bike was spotted near Myers’s residence 

“before noon.” Trial Transcript at 1226. Additionally, evidence from the 

bloodhound tracking search was consistent with Behrman having ridden the 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 27 of 67

bike to its final location as opposed to being driven there in a vehicle. Thus, 

although it is not impossible for the bike to have been dumped, we cannot 

conclude that it was unreasonable for trial counsel to decline to pursue a theory 

of defense that was wholly dependent on the jury reaching such a conclusion. 

While it might have been helpful to the defense to conclusively eliminate the 

possibility that Behrman had ridden north that morning, the evidence simply 

did not allow for such certainty. 

[34] Moreover, none of the evidence Myers argues should have been used to 

impeach the theory that Behrman rode north was particularly strong. For 

example, Myers argues that trial counsel should have established that shortly 

after Behrman’s disappearance, police investigated routes south and east of 

Bloomington. Considering the breadth of the investigation in this case and the 

fact that investigators were simultaneously investigating possible routes north of 

Bloomington, such evidence was unlikely to impress the jury. Myers also 

suggests that evidence should have been presented to the effect that 

investigators and Behrman’s family believed “[f]or years” that Behrman had 

ridden south. Appellant’s Brief at 33. But the jury was well aware that 

investigators primarily pursued Owings’s confession, which placed Behrman on 

the south route, until Behrman’s remains were discovered. 

[35] Myers also argues that trial counsel should have cross-examined Behrman’s 

parents “on their prior belief their daughter would not have ridden north based 

on the limited time she had, her riding habits and her habits preparing for work 

and leaving the house.” Id. at 33. The PCR court found that declining to 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 28 of 67

pressure the Behrmans about the specifics of their daughter’s bike route 

reflected a valid trial strategic decision to avoid alienating the jury by upsetting 

grieving parents.4

 In any event, Behrman’s parents clearly did not know which 

direction she had ridden that day, and we cannot conclude that cross-examining 

them as to their guesses on the matter would have had a significant impact on 

the jury. Finally, Myers argues that trial counsel should have impeached the 

testimony of Dr. Norman Houze, a cyclist who conducted a timed ride from the 

Behrman residence to the location where Behrman’s bike was discovered, with 

evidence that the ride was accomplished with a police escort.5

 But Myers has 

not directed our attention to any evidence suggesting that the police escort had 

an appreciable impact on the speed at which the ride was conducted. For all of 

these reasons, we also conclude that Myers has not established the requisite 

prejudice. 

[36] Myers also argues that trial counsel were ineffective for failing to object to 

hearsay testimony discrediting Papakhian’s sighting of Behrman on Harrell 

Road on the morning of her disappearance. Hearsay is an out-of-court 

statement offered in court to prove the truth of the matter asserted. Boatner v. 

State, 934 N.E.2d 184 (Ind. Ct. App. 2010). As a general rule, hearsay is 

 

4

 Myers argues that trial counsel was not concerned about alienating the jury because Patrick Baker crossexamined Behrman’s mother extensively about “whether her murdered daughter might have been pregnant 

with a married man’s baby.” Appellant’s Brief at 34. We note, however, that Patrick Baker testified at the 

PCR hearing that he believed that evidence concerning a possible pregnancy was crucial. It was not 

unreasonable for trial counsel to forego intense cross-examination on other, less important issues in order to 

avoid appearing antagonistic. 

5

 The results of the timed ride suggested that Behrman might have been able to take the northern route and 

still make it to work at the SRSC in time for her shift. Trial counsel cross-examined Dr. Houze extensively. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 29 of 67

inadmissible unless the statement falls within one of the established hearsay 

exceptions. Yamobi v. State, 672 N.E.2d 1344 (Ind. 1996). 

[37] Detective Arvin testified that Papakhian told police she believed she saw 

Behrman on the 4700 block of Harrell Road on the morning of Wednesday, 

May 31, but that she could not be one hundred percent certain that she had not 

seen her on Tuesday. Detective Arvin testified further that when he 

interviewed Papakhian, she recalled having an argument with her boyfriend at a 

small party the night before the sighting, and she named several other people 

who had attended the party. Detective Arvin testified that he interviewed five 

people as a result of his interview with Papakhian, and that he ultimately 

reported to Detective Lang “that the timeline that [Papakhian] had presented 

did not fit.” Trial Transcript at 2203. He testified further that based on his 

investigation, he believed that it was more likely that Papakhian had seen 

Behrman on Tuesday, the day before her disappearance. Detective Arvin 

explained that Papakhian told him that she regularly left her house forty-five 

minutes before her 10:20 a.m. class (i.e., at 9:35 a.m.) and Detective Arvin 

determined that it would take her only three minutes to drive to the 4700 block 

of Harrell Road. Because Behrman had logged off of her computer at 9:32 

a.m., and it would take a minimum of fifteen minutes for her to bike from the 

Behrman residence to Harrell Road (not including additional time to change 

clothes, put on cycling shoes, fill a water bottle, etc.), Detective Arvin believed 

that Behrman could not have made it to the 4700 block of Harrell Road in time 

for Papakhian to have seen her there on the date of her disappearance. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 30 of 67

[38] Myers argues that Detective Arvin testified to statements made to him by the 

other partygoers Papakhian identified, and that a hearsay objection to this 

testimony would have been sustained.6

 But Myers has not directed our 

attention to a single out-of-court statement made by these unnamed individuals 

and admitted into evidence through Detective Arvin’s testimony. Instead, 

Detective Arvin testified that after interviewing Papakhian and five other 

witnesses, he came to the conclusion that Papakhian’s timeline did not fit and 

she had probably seen Behrman on Tuesday. When giving a further 

explanation of why he reached the conclusion, Detective Arvin referred not to 

any statements or information gathered from the partygoers, but to the timeline 

he had worked out based on Papakhian’s statements and Behrman’s computer 

logoff time. Because Myers has not established that Detective Arvin testified to 

any out-of-court statements made by the unnamed witnesses he interviewed, 

Myers has not established that trial counsel were ineffective for failing to object 

based on hearsay. 

D. 

[39] Myers also argues that his trial counsel were ineffective for failing to object to 

the admission of evidence of a bloodhound tracking search, or alternatively for 

failing to impeach the reliability of such evidence. At trial, Porter County 

 

6

 Myers makes no argument that counsel should have objected when Detective Arvin testified at length to 

out-of-court statements made by Papakhian, and for good reason. Because Papakhian did not testify at trial, 

the only way to get evidence of her sighting before the jury was through the testimony of others. Myers 

makes no argument that trial counsel were ineffective for failing to call Papakhian as a witness, and 

Papakhian did not testify at the PCR hearing. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 31 of 67

Sheriff’s Deputy and canine handler Charles Douthett testified concerning a 

search he performed with his bloodhound, Sam. Deputy Douthett testified that 

he had been working with Sam for over ten years, and that he and Sam had 

attended numerous seminars and trainings and worked homicide investigations 

in six states. Deputy Douthett testified further that he and Sam had conducted 

numerous real-world tracking searches, including some cases involving tracking 

bicyclists. Deputy Douthett went on to describe the process used to present a 

bloodhound with a scent and to track that scent. 

[40] Deputy Douthett testified further that the FBI contacted him and asked him to 

come to Bloomington to conduct a tracking search in the Behrman case. An 

exhaustive description of the tracking search is not necessary here. It suffices 

for our purposes to note that Deputy Douthett and Sam were taken to a spot on 

North Maple Grove Road roughly one-half mile southwest of where Behrman’s 

bike had been discovered. Sam tracked Behrman’s scent to the spot the bike 

had been found and continued tracking the scent northward briefly before 

losing the scent and doubling back to the starting point of the search. At that 

point, Deputy Douthett and Sam got into a vehicle and were driven southward 

along the path Sam had been following. They stopped and got out of the 

vehicle at an intersection a few hundred yards away from Highway 37. 

Hollars’s residence is very close to this intersection. Sam was able to pick the 

scent back up at that point and she followed it across Highway 37 before 

turning south on Kinser Pike. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 32 of 67

[41] Myers argues that evidence of the bloodhound tracking search was 

inadmissible, or at the very least subject to impeachment on the basis of its 

unreliability. In support of this argument, he cites a line of Indiana Supreme 

Court cases supporting the proposition that bloodhound tracking evidence is 

too unreliable to be admissible. See Hill v. State, 531 N.E.2d 1382 (Ind. 1989); 

Brafford v. State, 516 N.E.2d 45 (Ind. 1987); Ruse v. State, 186 Ind. 237, 115 N.E. 

778 (Ind. 1917). The State notes, however, that all of these cases were decided 

prior to the adoption of the Indiana Rules of Evidence. In his reply brief, Myers 

appears to concede that the line of cases he cited in his appellant’s brief are no 

longer controlling. Instead, he argues that the admission of the bloodhound 

tracking evidence would now be evaluated under Indiana Evidence Rule 

702(b), which provides that “[e]xpert scientific testimony is admissible only if 

the court is satisfied that the expert testimony rests upon reliable scientific 

principles.” According to Myers, the application of Rule 702(b) would result in 

the exclusion of bloodhound tracking evidence because “[a] dog’s accuracy 

relies upon too many variant and subjective factors to be considered reliable”. 

Reply Brief at 8. Myers also argues that even if bloodhound tracking evidence 

might be deemed admissible under the current rules of evidence, trial counsel 

were ineffective for failing to impeach the evidence by establishing its 

unreliability. 

[42] We need not address whether the bloodhound tracking evidence in this case 

was admissible or subject to impeachment. “[A]n objection to inadmissible 

evidence may be waived as part of reasonable trial strategy, which will not be 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 33 of 67

second-guessed by this court.” Nordstrom v. State, 627 N.E.2d 1380, 1385 (Ind. 

Ct. App. 1994), trans. denied. Trial counsel may also choose to forego 

opportunities to impeach evidence when doing so serves a reasonable strategic 

purpose. See Kubsch v. State, 934 N.E.2d 1136 (concluding that counsel’s 

decision not to impeach a witness was a matter of trial strategy and did not 

amount to ineffective assistance). 

[43] At the PCR hearing, Patrick Baker testified that he could not recall whether he 

considered objecting to the bloodhound tracking evidence. Likewise, he could 

not recall whether he considered consulting with an expert on bloodhounds or 

researched the admissibility of such evidence, although he believed he or 

someone in his office had probably done some research on the issue. He noted 

on cross-examination that the bloodhound evidence put Behrman within a 

reasonable proximity of Hollars’s house around the time of her disappearance. 

[44] It is Myers’s burden to overcome the presumption that there were strategic 

reasons for the decisions trial counsel made. If Myers cannot satisfy that 

burden, he cannot establish deficient performance. Patrick Baker’s inability to 

recall at the time of the PCR hearing whether he researched bloodhound 

evidence or considered objecting to its introduction at trial over six years earlier 

is insufficient to overcome the presumption in this case. This is so because we 

judge counsel’s performance “by the standard of objective reasonableness, not 

his subjective state of mind.” Woodson v. State, 961 N.E.2d 1035, 1041 (Ind. Ct. 

App. 2012) (citing Harrington v. Richter, 562 U.S. 86), trans. denied. “Although 

courts may not indulge ‘post hoc rationalization’ for counsel’s decisionmaking 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 34 of 67

that contradicts the available evidence of counsel’s actions, neither may they 

insist counsel confirm every aspect of the strategic basis for his or her actions.” 

Harrington v. Richter, 562 U.S. at 109 (internal citation omitted). 

[45] Judging trial counsel’s performance by an objective standard of reasonableness, 

as we must, we conclude that there were valid strategic reasons for declining to 

object to or impeach the bloodhound tracking evidence irrespective of Patrick 

Baker’s inability to recall his thoughts on the subject. One of trial counsel’s 

tactics throughout trial was to cast suspicion on Hollars, and the bloodhound 

tracking evidence supported that strategy because it placed Behrman near 

Hollars’s residence. Indeed, trial counsel relied on the bloodhound tracking 

evidence and its link to Hollars in both opening statements and closing 

arguments. We will not speculate on the ultimate wisdom of trial counsel’s 

strategic decisions on this issue. Because Myers has not overcome the 

presumption that trial counsel acted competently in declining to object to or 

impeach the bloodhound tracking evidence, he has not established ineffective 

assistance in this regard. 

E. 

[46] Next, Myers argues that his trial counsel were ineffective for failing to impeach 

Betty Swaffard’s testimony. Swaffard, Myers’s maternal grandmother, testified 

to certain statements Myers made to her following Behrman’s disappearance. 

Specifically, Swaffard testified that on June 27, 2000, the date Detective 

Crussen interviewed Myers’s parents, Myers called Swaffard and asked to 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 35 of 67

borrow money. Swaffard told Myers that he would have to come to her house 

to pick up the money, and he said he could not come because there were road 

blocks up on Maple Grove Road, and he did not want to go out because he was 

a suspect in Behrman’s disappearance. Swaffard testified further that in 

November 2004, Myers called her and asked her to look after his daughter 

because he needed some time alone to think. Swaffard asked what was on his 

mind, and Myers said, “Grandma, if you just knew the things that I’ve got on 

my mind. . . . [I]f the authorities knew it, I’d be in prison for the rest of my 

life.” Trial Transcript at 1833. Myers stated further that his father had known it 

and “took it to the grave with him.” Id. Later that evening, when Myers 

dropped his daughter off at Swaffard’s house, he had tears in his eyes and said, 

“Grandma, I wish I wasn’t a bad person. I wish I hadn’t done these bad 

things.” Id. at 1833-34. On cross-examination, trial counsel asked Swaffard 

only two questions, both of which were apparently intended to establish that 

Swaffard had developed an unusually close relationship with Detective Lang. 

First, counsel asked Swaffard whether she knew Detective Lang’s telephone 

number, and she responded affirmatively. Second, counsel asked what 

Detective Lang’s phone number was, and Swaffard began to answer but was 

interrupted by an objection from the State. The trial court sustained the 

objection, and trial counsel declined to cross-examine Swaffard further. 

[47] On appeal, Myers argues that trial counsel were ineffective for failing to use 

recordings of telephone conversations between Myers and Swaffard to impeach 

Swaffard’s testimony at trial. We note that in May 2005, with Swaffard’s 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 36 of 67

permission, Detective Lang began recording Swaffard’s phone calls with Myers. 

Some of these recordings were of telephone calls Myers made to Swaffard from 

jail, in which Myers told Swaffard that he had been interviewed concerning 

Behrman’s death and denied any involvement or knowledge thereof. At the 

PCR hearing, Patrick Baker testified that he had heard the recorded phone calls, 

but his strategy with respect to Swaffard was to get her off the witness stand as 

quickly as possible. He testified that Swaffard gave very damaging evidence, 

that her demeanor and presentation were credible, and that it was extremely 

challenging to explain to the jury why a grandmother would falsely implicate 

her grandson in a murder. 

[48] On appeal, Myers argues that this was not a reasonable trial strategy, and that 

trial counsel were required to make a greater effort to impeach Swaffard 

precisely because her testimony was damaging and appeared credible. This is 

the sort of second-guessing of trial strategy in which we will not engage on 

appeal. “It is well settled that the nature and extent of cross-examination is a 

matter of strategy delegated to trial counsel.” Waldon v. State, 684 N.E.2d 206, 

208 (Ind. Ct. App. 1997), trans. denied. Myers has not established that a strategy 

of limiting the jury’s exposure to Swaffard’s testimony and denying her the 

opportunity to elaborate further thereon fell outside the wide range of 

constitutionally competent assistance. 

[49] In any event, Myers has not directed our attention to any particularly 

persuasive impeachment evidence contained within the telephone recordings. 

Although Myers denied any involvement in or knowledge of what happened to 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 37 of 67

Berhman in the phone calls he made to Swaffard from the jail, he did so after 

being made aware that he was a suspect in the case. Additionally, he 

acknowledged during the conversations that he knew that telephone calls made 

from the jail are recorded. In light of these facts, Myers’s denials of 

involvement were unlikely to sway the jury, and they do nothing to explain 

why Swaffard would falsely implicate Myers. Moreover, in order to impeach 

Swaffard with the recordings, trial counsel would have had to make the jury 

aware that Myers’s own grandmother had voluntarily agreed to allow Detective 

Lang to record her conversations with Myers. The damaging effect of such 

evidence would likely outweigh its minimal impeachment value. 

[50] Myers also argues that counsel was ineffective for failing to object to what he 

calls “religious vouching” for Swaffard’s credibility. Appellant’s Brief at 43. 

Specifically, Swaffard was allowed to testify, albeit briefly and without great 

detail, concerning her religious involvement, including her affiliation with a 

specific church, her studies at a Bible college, and religious writings she has 

authored. According, to Myers, this testimony “served no purpose other than 

to portray [Swaffard] as a God-fearing woman who wouldn’t lie.” Id. at 43. 

Myers argues that the error was compounded when the State made reference to 

Swaffard’s faith in its closing argument, stating that she came forward after 

“great prayer and . . . thought” and that “by the grace of God she came forward 

and told you the truth[.]” Trial Transcript at 1247, 2827. 

[51] At trial, Myers’s counsel objected to the State’s line of questioning regarding 

Swaffard’s religious involvement on the basis of relevance. The trial court 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 38 of 67

overruled the objection and explained that it would allow “some introductory 

questions just so the jury knows who the witness is.” Id. at 1813. On appeal, 

Myers argues that trial counsel’s objection was insufficient because “he did not 

provide a specific rule.” Appellant’s Brief at 43. We note, however, that Myers 

has also failed to cite any specific rule of evidence in his appellant’s brief in 

support of this assertion that Swaffard’s testimony amounted to impermissible 

“religious vouching.” Instead, he argues that “[v]ouching testimony invades 

the province of the jury”, and he cites two cases, both of which address issues 

concerning adult witnesses vouching for the truthfulness of victims in child 

molesting cases. Id. The State, however, has directed our attention to Indiana 

Evidence Rule 610, which provides that “[e]vidence of a witness’s religious 

beliefs or opinions is not admissible to attack or support the witness’s 

credibility.” 

[52] The testimony Myers argues amounted to impermissible religious vouching was 

part of general background information Swaffard was asked to give about her 

life. She testified that she had lived in her home for forty-five years, that she 

was homemaker, that her husband was deceased, and that her hobbies included 

reading, writing, and gardening. She testified further that she had completed 

some studies at a Bible college and authored a children’s Bible school 

curriculum. The State then asked Swaffard whether she attended a specific 

church, and trial counsel objected to the line of questioning based on relevance. 

The trial court overruled the objection, and Swaffard went on to testify that she 

had attended Maple Grove Christian Church for nine years, that she wrote 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 39 of 67

poetry and ladies’ devotionals, and she gave more background about her 

children and family. 

[53] We cannot conclude that Swaffard’s testimony concerning her religious 

involvement constitutes vouching, religious or otherwise. Although the 

relevance of Swaffard’s religious involvement is certainly questionable (hence 

trial counsel’s objection on that basis), her testimony contained no express or 

implied assertion that she was more or less likely to tell the truth due to her 

religious beliefs. Thus, Myers has not established a reasonable probability that 

an objection on this basis would have been sustained. See Passwater v. State, 989 

N.E.2d 766 (Ind. 2013) (explaining that to prevail on a claim of ineffectiveness 

based on failure to object, the defendant must establish a reasonable probability 

that the objection would have been sustained). Moreover, Myers has not 

established that he was prejudiced by Swaffard’s testimony in this regard. 

Swaffard’s testimony concerning her involvement in church and religious 

activities was short and not greatly detailed. More importantly, Swaffard 

testified that Myers was her grandson and that she loved him and had been 

close with him since he was a small child. In light of the evidence concerning 

Swaffard’s relationship with Myers and the absence of any motive to lie, we are 

unconvinced that testimony concerning her religious involvement had a 

significant impact on the jury’s assessment of her credibility. 

[54] To the extent Myers argues that the prosecuting attorney’s remarks in closing 

argument crossed the line into impermissible religious vouching, we note that 

the State’s references to Swaffard’s religion were brief and vague at best. The 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 40 of 67

State’s use of the common phrase “by the grace of God” conveyed nothing 

about Swaffard’s religious beliefs, nor did its statement that Swaffard was “the 

last of a dying breed. A generation of people where truth mattered more than 

anything else, where telling the truth was an oath that was taken seriously.” 

Trial Transcript at 2827, 2754-55. If anything, these statements suggested that 

Swaffard was more likely to tell the truth because of her age, not because her 

religious convictions compelled her to do so. 

[55] The State’s remark that Swaffard came forward “with great prayer” is arguably 

a more direct reference to her religion, but when viewed in context, it is 

apparent that the statement did not imply that Swaffard was credible because of 

her religious beliefs. Id. at 2747. The statement was made as part of the 

following argument: 

And stop for a moment to think how much doubt . . . how much 

reasonable doubt [Swaffard] had overcome before she came forward 

with what she knew. She knew what it would do to the family. You 

saw what Jodie, Sam, and Luke did. They circled the wagons. But 

she told you one thing, [Swaffard] did, didn’t she? That her 

conscience wouldn’t let her sleep unless she came forward. Think how 

hard it would be for any grandmother to do. You know, as you get 

older you start thinking about your family legacy. You start thinking 

about what’s important in life and with . . . with many tears and with 

great . . . with great prayer and . . . and thought, [Swaffard] did come 

forward. This is a case about relationships. 

Id. Thus, it is apparent that the State was arguing that it was very difficult for 

Swaffard to come forward due to the impact her cooperation with the 

investigation would have on her familial relationships, but that her conscience 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 41 of 67

nevertheless compelled her to do so. In other words, the State argued that 

Swaffard was credible because she came forward with reservations and at great 

personal expense. The brief reference to prayer did nothing to imply that 

Swaffard was more credible because of her religious beliefs. 

[56] Moreover, Myers did not question trial counsel at the PCR hearing with respect 

to his failure to object to these statements. Our Supreme Court has held that, 

because counsel is presumed to be competent, “an action or omission that is 

within the range of reasonable attorney behavior can only support a claim of 

ineffective assistance if that presumption is overcome by specific evidence as to 

the performance of the particular lawyer.” Morgan v. State, 755 N.E.2d 1070, 

1074 (Ind. 2001). Under the circumstances presented here, trial counsel could 

have concluded that objecting to the State’s vague, passing references to 

Swaffard’s religious convictions would only draw more attention to them, and 

Myers has presented no evidence to the contrary. See Smith v. State, 822 N.E.2d 

193 (Ind. Ct. App. 2005) (noting that it is reasonable strategy for counsel not to 

object to certain evidence to avoid drawing unfavorable attention to it). In any 

event, we are unconvinced that the complained-of statements had an impact on 

the jury’s verdict. For these reasons, Myers has established neither deficient 

performance nor prejudice stemming from counsel’s failure to object to socalled religious vouching. 

F. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 42 of 67

[57] Myers next argues that trial counsel were ineffective for failing to adequately 

impeach Carly Goodman’s testimony. Goodman testified that one night in 

March 2000, Myers, her then-boyfriend, took her for a long car ride through 

Gosport to a wooded area, where he parked in a “clearance” surrounded by a 

wooded area. Trial Transcript at 1899. Goodman testified that after Myers 

stopped the car, the couple argued and that she was afraid and wanted to go 

home. Goodman testified further that in February of 2006, she went for a drive 

with Detective Lang to identify places that Myers had taken her during their 

relationship. She recognized one place as the wooded area where she and 

Myers had argued in March 2000. This was the same area where Behrman’s 

remains were discovered in 2003. Myers’s trial counsel conducted a relatively 

short cross-examination, in which he asked a number of questions designed to 

create doubt as to the whether the site was sufficiently distinctive-looking for 

Goodman to reliably differentiate it from other nearby wooded areas. On 

appeal, Myers argues that trial counsel should have impeached Goodman with 

her prior, allegedly inconsistent statements about the site. 

[58] At the PCR hearing, Patrick Baker testified that his strategy with respect to 

Goodman’s cross-examination was similar to his strategy with Swaffard—he 

sought to get Goodman off the witness stand as quickly as possible. He testified 

further that Goodman “had a lot of information, 404(b) evidence, that regarded 

domestic battery situations with [Myers]. Regarded her being held against her 

will in a trailer, I think, for three or four days without any clothes. I think 

protective orders that she had filed against [Myers.]” PCR Transcript at 581. He 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 43 of 67

explained that this information had been ruled inadmissible, but he still had 

concerns about Goodman bringing it up. Moreover, when asked whether he 

had planned to impeach Goodman with prior inconsistent statements, counsel 

responded that he did not recall specifically, but that any strategies he had 

devised changed during Goodman’s testimony because she displayed a palpable 

demeanor of fear toward Myers. 

[59] Myers dismisses trial counsel’s explanation of his strategy as unreasonable. He 

asserts that counsel could have cross-examined Goodman concerning her prior 

statements made to Detective Lang at the time she identified the site without 

eliciting or opening the door to prejudicial and inadmissible testimony. 

Further, Myers argues that fearful witnesses are “a reality of criminal defense 

for which counsel should be prepared.”7

 Appellant’s Brief at 45. We will not 

engage in this sort of second-guessing of trial counsel’s strategic decisions 

concerning the nature and scope of cross-examination. Myers has not 

established that his trial counsel’s strategy was unreasonable; to the contrary, it 

was quite reasonable for trial counsel to minimize the jury’s exposure to 

Goodman’s fearful demeanor and avoid any inadvertent mention of highly 

prejudicial and inadmissible evidence by limiting the scope and duration of his 

cross-examination, while simultaneously eliciting testimony casting doubt on 

the reliability of her identification of the area. 

 

7

 Myers does not, however, make any attempt to explain what such “preparation” would entail or propose an 

alternative strategy for dealing with such witnesses. It appears to us that one obvious strategy could be to 

limit cross-examination of such witnesses, as trial counsel did in this case. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 44 of 67

[60] Moreover, Myers has again failed to establish the requisite prejudice. Much of 

the impeachment evidence Myers argues should have been used during 

Goodman’s cross-examination was explored through Detective Lang’s 

testimony. For example, Myers argues that trial counsel should have 

impeached Goodman with Detective Lang’s testimony during the grand jury 

proceedings that Goodman recognized the area due to a humming sound the 

tires made as they drove across a metal bridge. The bridge, however, was not 

installed until 2001, well after Goodman’s March 2000 car ride with Myers. 

[61] Contrary to Myers’s assertion on appeal, Detective Lang’s grand jury testimony 

did not establish that Goodman recognized the area due to the sound of the 

tires on the bridge. Although Detective Lang mentioned the humming sound 

the tires made, he did not state that the sound is what triggered Goodman’s 

memory. Instead, Detective Lang described the bridge and the humming 

sound, and said it was at that point that Goodman stopped him midsentence 

and said that that the area looked more familiar to her than any of the other 

places they had been. Detective Lang later clarified that Goodman “did not 

indicate on the bridge. That’s just where she interrupted my sentence and said, 

this place looks more familiar. She didn’t say the bridge was more familiar, I 

remember that sound. She just said this place looks more familiar than any 

place we’ve been up to that point.” Grand Jury Transcript at 6104. Indeed, in 

her own grand jury testimony, Goodman specifically stated that it was not the 

bridge that caused the area to be recognizable to her. Instead, she stated that 

she recognized a nearby creek, woods, steep hills with rocks on them, and an 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 45 of 67

area she described as a “cutoff”, which was not a road but provided enough 

clearance to allow a person to drive a short distance into the woods. Id. at 

4080. 

[62] Moreover, trial counsel did, in fact, raise the issue of Goodman’s recognition of 

the bridge with Detective Lang. Specifically, trial counsel elicited testimony 

from Detective Lang concerning the date the bridge was constructed, and he 

asked Detective Lang whether it was true that Goodman recognized the bridge. 

Detective Lang responded that Goodman did not recognize the bridge, and 

instead recognized the area. Detective Lang’s trial testimony is supported by 

both his and Goodman’s grand jury testimony. For these reasons, it is apparent 

that any further attempt to impeach Goodman or Lang using their grand jury 

testimony on this point would have been unsuccessful.8

[63] Myers also makes much of the fact that Goodman told Detective Lang that the 

wooded area where Behrman’s remains were found was similar to, or looked 

like, the place Myers took her in March 2000 instead of positively identifying 

the area. At trial, however, when shown a picture of the area in which 

Behrman’s remains were discovered, she responded “[t]hat’s where he took 

 

8

 Myers also argues that trial should have used Detective Lang’s report to impeach his testimony that 

Goodman recognized a clearing in the woods. According to Myers, “[Detective] Lang did not document 

Goodman’s recognition of a cut-away in his report prepared contemporaneous with the trip.” Appellant’s Brief

at 11. Myers has not, however, directed our attention to a copy of Detective Lang’s report appearing in the 

record. We will not scour the extremely voluminous record in this case in search of support for Myers’s 

contentions on appeal. Because Myers has not adequately supported this claim with citation to the record, it 

is waived. See Smith v. State, 822 N.E.2d 193 (Ind. Ct. App. 2005). Waiver notwithstanding, at trial, 

Detective Lang and Goodman both testified that Goodman recognized the clearing in the woods. It is 

unlikely that the possibility that Detective Lang omitted this fact in his report would have significantly 

undermined their testimonies in this regard. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 46 of 67

me.” Trial Transcript at 1900. Our review of transcript reveals that trial counsel 

did a more than adequate job of calling into question the reliability of 

Goodman’s identification of the area. On cross-examination, trial counsel 

elicited the following testimony: 

Q. . . . How do you differentiate that picture from any other picture 

that’d be taken in the woods? 

A. Because of the way the clearance is. 

Q. How do you rec . . . differentiate that clearance from any other 

clearance? 

A. It’s . . . it’s just what looks familiar to me. 

Q. But you don’t know . . . that could be anywhere, correct? 

A. Yes. 

Id. at 1906. Moreover, Detective Lang testified that Goodman told him that the 

area “look[ed] more familiar to [her] that anyplace we’ve been.” Id. at 2413. 

Because the jury was presented with testimony that Goodman told Detective 

Lang that the area looked familiar instead of positively identifying the area, as 

well as with Goodman’s own testimony that the area just “look[ed] familiar”, 

id., counsel did not perform deficiently by failing to use Detective Lang’s grand 

jury testimony to establish those facts. 

[64] Myers also argues that his trial counsel were ineffective for failing to object to 

Goodman’s description of Myers’s behavior during the March 2000 car trip, 

which he calls “prejudicial 404(b) testimony”. Appellant’s Brief at 46. Myers 

does not, however, cite the applicable language of Indiana Evidence Rule 

404(b) or make any attempt to apply it. Accordingly, this argument is waived 

for lack of cogency. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 47 of 67

2005) (explaining that “[a] party waives an issue where the party fails to 

develop a cogent argument or provide adequate citation to authority and 

portions of the record”), trans. denied. 

[65] To the extent Myers has made a coherent argument on this point, it essentially 

boils down to an assertion that, in light of other testimony suggesting that 

Behrman may have been raped, Goodman’s testimony left the jury with the 

impression that Myers had raped her during the March 2000 car trip. In 

support of this argument, Myers directs our attention to Goodman’s testimony 

that during the trip, she did not kiss Myers, she wanted to go home, and that 

she was afraid, as well as her testimony that Myers refused to take her home, 

and that they both got out of the car and stayed at the location for thirty to 

forty-five minutes before Myers finally took her home. Myers’s argument on 

this point is unconvincing. Goodman told the jury what happened once they 

reached the clearing in the woods—she and Myers argued and Myers refused to 

take her home, which scared her. Nothing about Goodman’s testimony 

implied that she had been raped. 

[66] In any event, it is apparent that the testimony was admitted to show that Myers 

was familiar with the area in which Behrman’s remains were discovered and to 

explain why Goodman was still able to remember the location so vividly several 

years later, and not to establish that Myers had a propensity to commit murder 

or any other crime. Thus, the testimony did not violate Evidence Rule 404(b), 

and Myers points to no danger of unfair prejudice aside from his unpersuasive 

argument that the testimony left the jury with the impression that Goodman 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 48 of 67

had been raped. See Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010) 

(explaining that “[i]n assessing the admissibility of 404(b) evidence a trial court 

must (1) determine that the evidence of other crimes, wrongs, or acts is relevant 

to a matter at issue other than the defendant’s propensity to commit the charged 

act and (2) balance the probative value of the evidence against its prejudicial 

effect pursuant to Indiana Evidence Rule 403”), trans. denied. Thus, Myers has 

not established a reasonable probability that an objection on the basis of 

Evidence Rule 404(b) would have been sustained, and he is consequently 

unable to show that counsel performed deficiently by failing to object on that 

basis. 

G. 

[67] Next, Myers argues that trial counsel were ineffective for failing to object to 

testimony suggesting that Behrman had been raped. Specifically, forensic 

pathologist Dr. Stephen Radentz testified that the condition in which 

Berhman’s remains were discovered was consistent with a classic rape-homicide 

scenario. Additionally, Dr. Radentz responded affirmatively to a jury question 

asking whether he believed Berhman had been raped. During follow-up crossexamination by Myers’s trial counsel, Dr. Radentz admitted that there was no 

physical evidence that a rape had occurred. When questioned further by the 

State, Dr. Radentz testified that, based on his training and experience, he 

nevertheless believed that Berhman had been raped because the location and 

condition of the remains were consistent with a rape-homicide. The State 

referenced Dr. Radentz’s rape testimony in closing arguments. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 49 of 67

[68] On direct appeal, Myers argued that Dr. Radentz’s references to rape amounted 

to fundamental error. Another panel of this court concluded that the admission 

of Dr. Radentz’s rape testimony violated Evidence Rule 403 because Myers was 

not charged with rape and there was no physical evidence to support the rape 

determination. Myers v. State, 887 N.E.2d 170. The court went on, however, to 

conclude that the admission of the evidence did not amount to fundamental 

error. Id. The court reasoned as follows: 

We conclude that any error in the admission of Dr. Radentz’s rape 

testimony did not substantially influence the outcome of the trial. The 

question of rape was peripheral to the murder charge and received 

relatively minimal attention at trial. To the extent the possibility of 

rape was at issue, defense counsel thoroughly cross-examined Dr. 

Radentz, eliciting his testimony that there was no physical evidence 

that Behrman had been raped and that the only basis upon which he 

opined that a rape had occurred was his training and experience with 

respect to circumstances surrounding the general disposal of human 

remains. Furthermore, the trial court excluded all evidence tending to 

link Myers to inappropriate sexual conduct. The references to rape, 

therefore, did nothing to implicate Myers as the perpetrator of this 

charged crime, which was the central issue at trial. 

Id. at 187. 

[69] Myers is correct that this court’s conclusion on direct appeal that the admission 

of Dr. Radentz’s rape testimony did not amount to fundamental error does not 

necessarily preclude a finding that counsel’s failure to object thereto amounted 

to ineffective assistance. See Benefield v. State, 945 N.E.2d 791 (Ind. Ct. App. 

2011). To establish fundamental error, a defendant must show that the alleged 

error was so prejudicial as to make a fair trial impossible. Ryan v. State, 9 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 50 of 67

N.E.3d 663 (Ind. 2014). To satisfy the prejudice element of an ineffective 

assistance of counsel claim, on the other hand, a defendant must establish that 

there is a reasonable probability that the result of the proceeding would have 

been different but for counsel’s unprofessional errors. Massey v. State, 955 

N.E.2d 247 (Ind. Ct. App. 2011). Thus, this court has noted “that there is a 

subtle distinction between the fundamental error and ineffective assistance 

prejudice standards.” Benefield v. State, 945 N.E.2d at 803. Although the 

fundamental error standard “presents a higher bar”, “the two standards may 

frequently lead to the same result”. Id. at 804, 803. 

[70] This is one such case. For the same reasons this court on direct appeal 

concluded no fundamental error occurred, we also conclude that Myers has not 

established prejudice sufficient to warrant a finding of ineffective assistance of 

counsel. We agree with the panel’s conclusion that Dr. Radentz’s rape 

testimony did not substantially influence the outcome of the trial. Accordingly, 

Myers has not established a reasonable probability that the outcome of the trial 

would have been different but for counsel’s failure to object. 

H. 

[71] Next, Myers argues that his trial counsel was ineffective for failing to object to 

what he calls irrelevant and highly prejudicial gun evidence. Specifically, 

Myers points to the testimony of Billy Dodd, Myers’s neighbor at the time of 

Behrman’s disappearance, that a number of rifles and shotguns were kept in a 

barn near Myers’s trailer. Additionally, Debbie Bell, Myers’s aunt, testified that 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 51 of 67

Myers sold her husband a shotgun at Myers’s father’s funeral in December 

2000, several months after Behrman’s disappearance. Detective Lang testified 

that he retrieved that gun from Bell. Although the record reveals that this gun, 

as well as several others that Myers sold or distributed to relatives, had been 

stolen from the barn near Myers’s trailer, the jury was not made aware of that 

fact and evidence of Myers’s resulting conviction for receiving stolen property 

was excluded. 

[72] “Evidence that the defendant had access to a weapon of the type used in the 

crime is relevant to a matter at issue other than the defendant’s propensity to 

commit the charged act.” Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 

2008), trans. denied. On the other hand, “[e]vidence of weapons possessed by a 

defendant but not used in the crime for which the defendant is charged should 

generally not be introduced because the evidence is irrelevant and highly 

prejudicial.” Oldham v. State, 779 N.E.2d 1162, 1174 (Ind. Ct. App. 2002). On 

appeal, Myers argues that trial counsel should have objected to all evidence 

relating to the guns from the barn on the basis of relevance because Detective 

Lang’s grand jury testimony established that they were not stolen until 

November 2000, well after Behrman’s disappearance, and therefore could not 

have been the murder weapon.9

 But Detective Lang’s testimony was hardly 

 

9

 Citing the same portion of the grand jury transcript, Myers also claims that the State acknowledged during 

the grand jury proceedings that the murder weapon was not among the guns taken from the barn. The 

transcript contains no such concession, and even if it did, Myers has not directed our attention to any 

authority or made any argument remotely supporting the proposition that the State would be somehow 

bound by a statement it made in the midst of an ongoing grand jury investigation. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 52 of 67

conclusive on this point. Detective Lang testified as follows before the grand 

jury: 

I talked to Mr. Maher, [the owner of the barn], the burglary he 

reported it November 2000, which would have been after the death 

obviously of [Behrman]. I asked him if it could be possible that he 

would not have known between May and November when he reported 

it that any of those weapons were missing? In his opinion, he said no. 

I don’t know. You know I mean he . . . if they were all missing, I’m 

sure he’s correct. If he took one, you know, it could have been out and 

he would not [have] noticed it in my opinion. But, he said that the air 

conditioner was removed and that was what tipped him off that 

something was wrong and then he found the guns were gone, so. He 

stated that he made trips to the barn on several occasions enough 

between May and November that he would have known somewhere in 

between that time that they would have been gone. 

Grand Jury Transcript at 5483-84. 

[73] The post-conviction court found testimony concerning the guns relevant 

because they (or at least one of them) could have been taken during a previous, 

undiscovered entry. We agree. Unlike in Oldham v. State, here there was no 

conclusive scientific proof that the weapons at issue were not used in the crime. 

The fact that the owner of the barn believed that he would have noticed if the 

guns were stolen prior to Behrman’s death goes to the weight to be attributed to 

the evidence, not its admissibility.10 Thus, Myers has not established that the 

gun testimony was irrelevant. 

 

10 The owner of the barn did not testify at the PCR hearing. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 53 of 67

[74] Myers has also failed to establish prejudice arising from the admission of the 

gun evidence in this case. There was other evidence presented at trial to 

establish that Myers had access to shotguns like the one used to kill Behrman. 

Samuel Myers, Myers’s brother, testified that he owned a twelve-gauge 

shotgun, which he kept at his parents’ house. Samuel testified further that he 

noticed that his shotgun was missing around August of 2000 and that he was 

never able to locate the weapon. Myers’s other brother, Lucas Myers, also 

testified that Myers had access to shotguns at their parents’ house, and Richard 

Swinney, Myers’s cousin by marriage, testified that Myers told him that he 

hunted with a twelve-gauge shotgun. Accordingly, additional evidence to the 

effect that Myers had access to and possession of such weapons was unlikely to 

have had a significant impact on the outcome of the trial. Moreover, evidence 

was presented that many people in the community possessed similar weapons 

for hunting purposes and that Myers was himself a hunter. Thus, Myers’s 

possession of such weapons, standing alone, was unlikely to be viewed by the 

jury as indicative of dangerousness or criminal activity. For all of these 

reasons, Myers has not established that his trial counsel were ineffective for 

failing to object to testimony that guns were stored in a barn near Myers’s 

trailer and that Myers sold a shotgun to his uncle. 

I. 

[75] Myers next argues that trial counsel were ineffective for failing to object to the 

testimony of jailhouse informant John Roell. As we have already noted, “in 

order to prevail on a claim of ineffective assistance due to the failure to object, 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 54 of 67

the defendant must show a reasonable probability that the objection would have 

been sustained if made.” Passwater v. State, 989 N.E.2d at 773. Myers has not 

satisfied this burden. 

[76] Roell testified at trial that he had been Myers’s cellmate in the Monroe County 

Jail in May 2005. He testified further that Myers told him he was waiting to be 

questioned by the Indiana State Police concerning Behrman’s bicycle. 

According to Roell, Myers appeared nervous and angry, and at one point stated 

“if she wouldn’t have said anything, none of this probably would have 

happened.” Trial Transcript at 2270-71. Roell understood Myers to be referring 

to Behrman when he made this statement, and Roell testified further that Myers 

referred to Behrman as a bitch. 

[77] Myers contends that counsel should have objected to Roell’s testimony 

pursuant to Indiana Evidence Rule 403. This rule provides, in pertinent part, 

that relevant evidence may be excluded “if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice[.]” Ind. Evid. R. 403. “All 

evidence that is relevant to a criminal prosecution is inherently prejudicial; thus 

proper inquiry under Evidence Rule 403 boils down to a balance of the 

probative value of the proffered evidence against the likely unfair prejudicial 

impact of that evidence.” Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 

2014), trans. denied. “When determining the likely unfair prejudicial impact, 

courts will look for the dangers that the jury will (1) substantially overestimate 

the value of the evidence or (2) that the evidence will arouse or inflame the 

passions or sympathies of the jury.” Duvall v. State, 978 N.E.2d 417, 428 (Ind. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 55 of 67

Ct. App. 2012) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)), trans. 

denied. 

[78] The crux of Myers’s argument is that the probative value of Roell’s testimony 

was low because he was not a credible witness due to inconsistencies among his 

initial statement to police, his deposition testimony, and his trial testimony. 

But it was for the trier of fact, not the trial court, to judge Roell’s credibility. 

Ultimately, Myers’s argument in this regard goes to the weight to be afforded to 

Roell’s testimony, not its admissibility. See Embrey v. State, 989 N.E.2d 1260, 

1268 (Ind. Ct. App. 2013) (“[i]nconsistencies in witness testimony go to the 

weight and credibility of the testimony, the resolution of which is within the 

province of the trier of fact” (internal quotation omitted)). Roell’s testimony, if 

credited by the trier of fact, was highly probative of Myers’s guilt. 

[79] Myers also argues that the admission of Roell’s testimony posed a significant 

danger of unfair prejudice because, in order to fully impeach Roell, Myers 

would have had to use Roell’s prior statement to police, which contained 

information more damaging to Myers’s defense than Roell’s trial testimony.11 

“Unfair prejudice addresses the way in which the jury is expected to respond to 

the evidence; it looks to the capacity of the evidence to persuade by illegitimate 

means, or the tendency of the evidence to suggest decision on an improper 

 

11 In support of this assertion, Myers cites only the deposition of Detective Cody Forston of the Bloomington 

Police Department. In the deposition, Detective Forston recounted Roell’s statement to him, noting 

specifically that Roell told him that Myers had stated that Behrman had been sexually assaulted and that “if 

the dumb bitch would have done what [he] had told her, she wouldn’t be dead now.” PCR Exhibit 239, p. 14. 

Roell did not make these statements in his deposition or trial testimony. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 56 of 67

basis....” Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999) (internal quotation 

marks omitted). 

[80] Nothing in Roell’s testimony was likely to prompt the jury to convict Myers on 

an improper basis. Myers has cited no relevant authority supporting the 

proposition that evidence may be considered unfairly prejudicial because it 

forces counsel make difficult strategic decisions with respect to its 

impeachment. We decline to develop this argument on his behalf. Because 

Myers has not satisfied his burden of establishing that an objection to Roell’s 

testimony on the basis of Evidence Rule 403 would have been sustained, he has 

consequently failed to establish deficient performance and resulting prejudice. 

J. 

[81] Next, Myers argues that his trial counsel were ineffective for failing to present 

all available evidence tending to establish the guilt of Owings, Sowders-Evans, 

and Clouse, and for failing to investigate and discover additional evidence to 

that effect. This argument is nothing more than a request to substitute Myers’s 

PCR counsel’s strategic judgment, informed by hindsight, for that of Myers’s 

trial counsel, which we will not do. 

[82] In 2002, Owings confessed to the police that she, Sowders-Evans, and Clouse 

had killed Behrman. In the story Owings gave police, she and Sowders-Evans 

were riding around with Clouse in his pickup truck and using drugs when 

Clouse struck a girl riding a bike on Harrell Road. Clouse stopped and loaded 

the injured and incapacitated girl into the back of the truck and wrapped her in 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 57 of 67

plastic secured with bungee cords before placing the bicycle on top of her. 

Owings went on to state that Clouse then drove them all to Salt Creek, where 

the three of them took turns stabbing the girl in the chest before Clouse and 

Sowders-Evans pushed the body into the water. Neither Sowders-Evans nor 

Clouse ever confessed to the police, and Owings recanted her confession after 

Behrman’s remains were discovered in Morgan County. 

[83] The State called Owings as a witness at Myers’s trial. Owings testified that 

when she was questioned by Detective Lang in April 2003, she denied any 

knowledge of Behrman’s disappearance. She testified further that she had 

previously lied about her involvement because she was facing a potential eightysix-year sentence for various unrelated felonies, and her attorney had urged her 

to come forward with anything she knew about the case in an attempt to curry 

favor with the prosecution. Owings testified that she had named Clouse and 

Sowders-Evans because “[f]rom the very first time I was questioned, those were 

the two names that I was supposedly to be with [sic] or around at the time of 

the said incident. They thought that all three of us were together.” Trial 

Transcript at 2094. She also testified that parts of her testimony were based on 

places she had been with Sowders-Evans in the past. Owings testified further 

that she had told police that the body was wrapped in plastic to explain why she 

was unable to identify the type of clothing Behrman had been wearing and that 

she said they had disposed of the body in Salt Creek “[b]ecause there’s so much 

stuff in there . . . I figured . . .they couldn’t even dive in it . . . . I knew they 

wouldn’t find her[.]” Id. at 2098. Owings stated that she recanted her 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 58 of 67

confession after Behrman’s remains were discovered because she believed that 

scientific evidence would exclude her. 

[84] Additionally, the State introduced into evidence a letter Owings received from 

her attorney prior to her confession. In the letter, Owings’s attorney painted an 

exceptionally dire picture of Owings’s prospects. Specifically, he wrote that 

“we might be talking about you being locked up until just about everyone you 

know has died of old age.” PCR Exhibit 301. Her attorney went on to write 

that he had heard that Owings might know something about the Behrman case, 

and told her “[f]or the sake of your children, your family, and your own life, if 

there is anything you can tell these people the time is NOW.” Id. He added 

that he had gotten “the distinct impression you might not be punished for 

anything to do with the Behrman case, and might get considerably better 

treatment in these other matters, if you can help solve this.” Id. He also wrote 

that Sowders-Evans, who was apparently also incarcerated, was trying to get 

out of jail, and that if Sowders-Evans talked first, Owings would be “sunk.” Id. 

[85] Myers argues that trial counsel were ineffective for failing to present certain 

testimony and witnesses supporting the theory that Owings, Sowders-Evans, 

and Clouse murdered Behrman. Trial counsel Hugh Baker, however, testified 

that the defense team made a strategic decision not to pursue Owings’s 

confession as its primary theory of defense. Specifically, he testified as follows: 

. . . [W]e felt that trying to present to a jury and convince a jury what 

the Federal Bureau of Investigations, the Bloomington Police 

Department, and the Indiana State Police had concluded was false was 

not a good strategy, that is the Owings’ confession. She’d recanted 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 59 of 67

this confession. And they hadn’t found Jill Behrman in the . . . in Salt 

Creek. Rather, she was found . . . her remains were found in Morgan 

County and she . . . hadn’t died from drowning but she’d died from 

99.9 percent certainty of being shot. 

PCR Transcript at 840. For these reasons, a decision not to pursue the Owings 

theory would clearly reflect a reasonable strategic judgment. Myers, however, 

asserts that trial counsel did, in fact, pursue the Owings theory at trial, and it 

was therefore deficient performance not to present more evidence to support it. 

[86] The record reveals that trial counsel pursued the Owings theory to some extent. 

Hugh Baker elicited testimony from Owings on cross-examination that she had 

discussed Behrman’s disappearance with several acquaintances and made 

incriminating statements to at least one of them. He also elicited testimony 

from Owings concerning the substance of her confession to police, and the fact 

that she had first been interviewed in connection with the Behrman case in June 

of 2000. Trial counsel also touched on the Owings theory with other witnesses 

throughout trial. Trial counsel elicited testimony from Dr. Radentz that not all 

of Behrman’s bones were recovered, and that it was possible (though unlikely) 

for her to have been stabbed without leaving marks on her skeletal remains. 

Trial counsel also elicited testimony from Detective Lang and FBI Agent Gary 

Dunn that the FBI had drained part of Salt Creek looking for Behrman’s 

remains, a task which took several weeks. A search of the drained creek yielded 

a retractable knife, a bungee cord, and two pieces of plastic sheeting, which 

were consistent with items Owings mentioned in her confession. Trial counsel 

also elicited testimony from Agent Dunn that he had received a tip that the 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 60 of 67

body had been moved and presented evidence that Papakhian had reported 

seeing Behrman on Harrell Road on the morning of her disappearance. In 

closing arguments, Patrick Baker told the jury that there were two theories 

leading away from Myers’s guilt and toward that of others—the Owings theory 

and the Hollars theory. 

[87] Essentially, Myers argues that trial counsel was obligated to take an all-ornothing approach to the Owings theory—either forego it entirely or present all 

evidence supporting it. We are unpersuaded by this argument. It is noteworthy 

that it was the State who first informed the jury of Owings and her recanted 

confession in its opening statement. The State did so in an effort to explain the 

delay in Myers’s development as the primary suspect, and presumably to get 

ahead of any attempt by the defense to cast suspicion on Owings and her 

alleged accomplices. Likewise, it was the State who called Owings to testify at 

trial. Under these circumstances, trial counsel did not act unreasonably by 

making a strategic decision to attempt to present just enough evidence to keep 

the possibility of Owings’s involvement alive in the minds of the jurors, without 

making the Owings theory the crux of Myers’s defense. Indeed, it appears to us 

that trial counsel’s decision to pursue the Owings theory to only a limited extent 

was actually quite shrewd because it prevented the jury from being exposed to 

all of the many conflicting versions of the story Owings, Sowders-Evans, and 

Clouse allegedly told.12 This information might have resulted not only in the 

 

12 Versions of the story were told in which Behrman was struck by a pickup truck, a car, and an SUV. Clouse 

allegedly told a cellmate that Behrman’s body was wrapped in black plastic, while Owings had told the police 

the plastic was off-white. Some versions of the story varied wildly from Owings’s confession to police. For 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 61 of 67

elimination in the jurors’ minds of the possibility that Owings’s confession was 

true, but also in trial counsel’s loss of credibility with the jury. As the State 

argues in its brief, “the best counsel could hope for was to keep Owings on the 

delicate, razor-thin edge of jurors’ credibility assessments. That strategy would 

have been ruined if counsel had pursued the over-zealous course of action 

advocated by Myers in this proceeding.” Appellee’s Brief at 50. Accordingly, 

Myers has not established that trial counsel performed deficiently in this 

regard.13 

[88] We also conclude that Myers was not prejudiced by trial counsel’s decision not 

to present additional evidence supporting the Owings theory. Myers makes no 

argument that counsel failed to present any physical evidence—rather, he 

claims that counsel should have presented testimony concerning incriminating 

statements Owings, Clouse, and Sowders-Evans made to others, as well as 

testimony corroborating parts of Owings’s confession and evidence that 

Sowders-Evans fled the state during the investigation. 14 But the jury was aware 

 

example, both Owings and Sowders-Evans allegedly told others that Behrman’s body had been 

dismembered, and more than one version of the story was told in which Behrman was kept in the trunk of a 

car for days before being killed. Additionally, Sowders-Evans and Owings both allegedly told stories of 

killing Behrman that involved a completely different cast of characters than that featured in Owings’s 

confession to the police. Owings allegedly gave one account of Behrman’s abduction and murder that 

included a brutal rape. 

13 To the extent Myers argues that trial counsel failed to investigate and discover additional evidence 

supporting the Owings theory, we conclude that the limitations on the investigation were the result of trial 

counsel’s reasonable strategic decision to limit reliance on the Owings theory. See Strickland v. Washington, 

466 U.S. 668. 

14 Myers also argues that trial counsel should have presented evidence that Owings, Clouse, and SowdersEvans gave false or shaky alibis. We note that Myers has not directed our attention to any evidence that 

Sowders-Evans ever provided an alibi. Moreover, Myers has not directed our attention to any portion of the 

record indicating that the jury was presented with evidence that any of the three had ever provided an alibi. 

Thus, there was no need for counsel to impeach those alleged alibis. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 62 of 67

of the most powerful evidence against Owings—her own confession to police. 

The jury was also aware that prior to the discovery of Behrman’s remains, 

police put enough stock into Owings’s confession to go to the extreme effort of 

draining part of Salt Creek, and that some corroborating physical evidence was 

discovered as a result. Additionally, trial counsel presented evidence that 

Papakhian had seen Behrman on Harrell Road on the date of her 

disappearance. Moreover, much of the testimony Myers argues trial counsel 

should have introduced might have been inadmissible,15 and much of the 

evidence Myers argues corroborated Owings’s confession was shaky and could 

easily be explained away by Owings’s testimony that she based parts of her 

confession on things that had actually happened.16 

[89] In any event, even if trial counsel had presented a parade of credible witnesses 

to testify that Owings, Clouse, and/or Sowders-Evans had confessed to hitting 

Behrman with a car, wrapping her in plastic, stabbing her in the chest, and 

dumping her body in Salt Creek, the fact remains that the confession simply did 

 

15 There are obvious hearsay problems with much of this evidence. Myers has made no attempt to establish 

that the statements at issue fall within an established exception to the hearsay rule, and we decline to develop 

this argument on his behalf. 

16 In her confession, Owings stated that the night before Behrman’s abduction, she and Sowders-Evans 

walked to a house at the corner of Rockport and That Road and asked to use the telephone. Alice 

O’Mullane lives at that corner, and she provided an affidavit stating that she remembered two girls coming to 

her home after midnight and asking to use the phone “[s]ome time in 2002”. PCR Exhibit 134. Owings also 

testified that Clouse ran a Jeep off Lampkins Ridge Road while en route to Salt Creek after hitting Behrman 

with the truck. DL Poer testified at the PCR hearing that in 2000, she lived off of Lampkins Ridge Road and 

drove a Jeep. Poer recalled almost being run off the road by a red truck in May 2000, but she gave conflicting 

statements as to the precise date in May. Owings later told Detective Lang that she had made up this portion 

of the story because she was familiar with the road and knew that people are often run off the road there. 

Poer also testified that the stretch of road was very dangerous. Given these witnesses’ uncertainty concerning 

the dates of these events, as well as Owings’s testimony that she based parts of her story on things that 

actually happened, we cannot conclude that this evidence would have had a significant impact on the jury. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 63 of 67

not mesh with the physical evidence. Behrman’s remains were found in a 

remote, wooded area, not in Salt Creek. There was no evidence that Behrman 

had been stabbed or struck by a car, but there was clear evidence that she had 

been shot in the head with a shotgun at the location where her remains were 

discovered. Although trial counsel elicited testimony from Agent Dunn that he 

had received a tip that the body had been moved, evidence was presented that 

the visibility in Salt Creek was extremely poor, and even the FBI was forced to 

go to the extreme measure of draining the creek in order to search it. 

Convincing the jury that Owings, her alleged accomplices, or their associates 

could have managed to remove the body from the creek would have been 

challenging, to say the least. Given the numerous, obvious weaknesses of the 

Owings theory, we cannot conclude that the decision not to pursue the theory 

to the extent Myers now advocates resulted in prejudice to Myers. 

Consequently, his claim of ineffective assistance of counsel on this basis fails. 

K. 

[90] Finally, Myers claims that the cumulative effect of trial counsel’s errors 

amounted to ineffective assistance entitling him to a new trial. We have 

reviewed each of Myers’s claims of error in detail and concluded that none of 

them amount to ineffective assistance of counsel. Indeed, most of Myers’s 

claims of ineffective assistance are nothing more than quarrels with trial 

counsel’s reasonable strategic decisions. “Alleged ‘[t]rial irregularities which 

standing alone do not amount to error do not gain the stature of reversible error 

when taken together.’” Kubsch v. State, 934 N.E.2d at 1154 (quoting Reaves v. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 64 of 67

State, 586 N.E.2d 847, 858 (Ind. 1992)) (alteration in original). Accordingly, we 

are unpersuaded by Myers’s cumulative error argument. 

2. 

[91] Next, Myers argues that the State violated his due process rights by failing to 

disclose all exculpatory evidence to the defense. In Brady v. Maryland, the 

United States Supreme Court held that “the suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where the 

evidence is material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). In order to 

prevail on a Brady claim, the defendant must establish: “(1) that the 

prosecution suppressed evidence; (2) that the evidence was favorable to the 

defense; and (3) that the evidence was material to an issue at trial.” Stephenson 

v. State, 864 N.E.2d 1022, 1056-57 (Ind. 2007) (quoting Conner v. State, 711 

N.E.2d 1238, 1245-46 (Ind. 2000)). Under Brady, evidence is considered 

material if the defendant establishes a reasonable probability that the result of 

the proceeding would have been different had the State disclosed the evidence. 

Stephenson v. State, 864 N.E.2d 1022. The State will not be found to have 

suppressed material information if such information was available to the 

defendant through the exercise of reasonable diligence. Id.

[92] Myers concedes that he cannot identify even one specific piece of evidence that 

the State suppressed. Instead, he asserts that in the course of investigating 

Myers’s post-conviction claims, post-conviction counsel received over 8,000 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 65 of 67

pages of documents directly from the FBI and the Bloomington Police 

Department, and the State did not document transferring any of these materials 

to the defense prior to trial in its discovery notices. At the PCR hearing, 

however, evidence was presented that trial counsel received additional 

discovery that was not documented by the State. Patrick Baker testified that 

discovery was “fluid” and that the State was not always meticulous in 

documenting what materials it had provided. PCR Transcript at 525. Chief 

Deputy Prosecutor Robert Cline stated that prior to trial, he provided trial 

counsel with a CD containing 3,000 pages of FBI reports, and possibly other 

kinds of reports, without documenting the transfer. Additionally, Patrick Baker 

testified that he reviewed boxes of investigative reports from the FBI, the 

Indiana State Police, the Bloomington Police Department, and the Indiana 

University Police Department at the Putnamville State Police Post.17 

[93] We agree with the post-conviction court’s conclusion that based on the 

evidence presented at the PCR hearing, it is unclear whether trial counsel was 

provided with or had access to all of the relevant investigative reports. 

Consequently, Myers has not satisfied his burden of establishing that the State 

suppressed such evidence. Moreover, even if we assume the State failed to 

disclose some evidence, without knowing what that evidence was, we cannot 

 

17 Myers makes much of the fact that Patrick Baker testified that he read these reports in the post’s property 

room. Sergeant Christopher Lewis, an ISP crime scene investigator, testified that police reports are not kept 

in the property room. He testified further, however, that reports are kept at the Putnamville Post. Thus, 

while trial counsel might have been mistaken in stating that he read the reports in the property room, this in 

no way establishes that he did not view the reports at the Putnamville Post. Sergeant Lewis testified further 

that the systems used to track who has viewed physical evidence held in the property room do not track who 

has viewed police reports. Thus, the fact that trial counsel’s viewing of the police reports was not 

documented in evidence logs likewise does not establish that he did not view the reports. 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 66 of 67

begin to determine whether it was favorable to the defense and material to an 

issue at trial, or merely cumulative of what was disclosed to Myers. 

Additionally, Myers has made no attempt whatsoever to establish that the 

allegedly suppressed investigative reports were not available to him through the 

exercise of reasonable diligence. Essentially, Myers asks us to ignore his 

evidentiary burden and presume not only that investigative reports were 

suppressed, but also that somewhere among the allegedly suppressed reports, a 

nugget of evidence satisfying the requirements of Brady must exist. This we will 

not do. 

3. 

[94] Finally, Myers argues that he is entitled to reversal of his conviction because the 

State committed prosecutorial misconduct at trial. Specifically, he asserts that 

the State committed prosecutorial misconduct by knowingly presenting false 

evidence and perjured testimony. See Giglio v. United States, 405 U.S. 150, 153 

(1972) (explaining that “deliberate deception of a court and jurors by the 

presentation of known false evidence is incompatible with ‘rudimentary 

demands of justice’” (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). 

[95] Myers has fallen far short of establishing that the complained-of testimony and 

evidence were false or that the State knew as much. But Myers’s claims of 

prosecutorial misconduct fail for a more fundamental reason. “Post-conviction 

procedures do not provide a petitioner with an opportunity to present 

freestanding claims that contend the original trial court committed error.” 
Court of Appeals of Indiana | Opinion 55A05-1312-PC-608 | May 28, 2015 Page 67 of 67

Wrinkles v. State, 749 N.E.2d 1179, 1187 n.3 (Ind. 2001). Rather, “‘[i]n postconviction proceedings, complaints that something went awry at trial are 

generally cognizable only when they show deprivation of the right to effective 

counsel or issues demonstrably unavailable at the time of trial or direct 

appeal.’” Bunch v. State, 778 N.E.2d 1285, 1289-90 (Ind. 2002) (quoting Sanders 

v. State, 765 N.E.2d 591, 592 (Ind. 2002)). “An available grounds for relief not 

raised at trial or on direct appeal is not available as a grounds for collateral 

attack.” Canaan v. State, 683 N.E.2d 227, 235 (Ind. 1997). Myers has made no 

attempt to establish that his claims of prosecutorial misconduct were 

demonstrably unavailable at trial or on direct appeal. His claims of 

prosecutorial misconduct are freestanding claims of trial error, and as such are 

not cognizable in this PCR proceeding. 

[96] Judgment affirmed. 

Vaidik, C.J., and Robb, J., concur.