Court of Appeals of Indiana | Memorandum Decision 82A01-1412-PC-546 | July 13, 2015 Page 1 of 18

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

J. Michael Sauer

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gene Hooks,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

July 13, 2015

Court of Appeals Case No.

82A01-1412-PC-546

Appeal from the

Vanderburgh Superior Court

The Honorable Robert J. Pigman, 

Judge

Cause No. 82D03-1108-PC-6

Kirsch, Judge.

[1] The Vanderburgh Superior Court denied Gene Hooks’s petition for postconviction relief, and he now appeals claiming that the post-conviction court 

clearly erred in denying his petition. On appeal, he raises one issue that we 

restate as: whether trial counsel provided ineffective assistance for failing to 
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object during trial and during the State’s closing argument and for presenting 

purportedly inconsistent defense theories during opening statement and closing 

argument. 

[2] We affirm. 

Facts and Procedural History

[3] The facts underlying Hooks’s convictions, as presented in his direct appeal, are:

Hooks and his wife, Maxine, often babysat for their daughter Aleta’s 

children, including I.W., who was born in December 2001, and C.H., 

who was born in May 1995. In July 2008, Aleta’s fiancé, Maurice, 

walked into I.W.’s bedroom and saw her “humping” a pillow with her 

hand near her genital area. I.W. told Maurice that Hooks had 

“messed” with her. I.W. told Aleta that Hooks had put his “thing” or 

“private” on her “private.” According to I.W., Hooks took her into 

the laundry room, had her stand on a stepping stool, removed her 

pants, placed cocoa butter on her genital area, and rubbed his penis on 

her genitals. After he stopped, he would give I.W. some toilet paper 

and tell her to wipe off the cocoa butter.

Later, Maxine went to Maurice’s residence to talk to Aleta and the 

girls. While Maxine was questioning C.H., C.H. said that Hooks had 

also touched her. According to C.H., Hooks started touching her 

when she was five years old. C.H. said that, when Hooks and Maxine 

lived in an apartment, he would put C.H. on his lap, pull her pants 

down, put cocoa butter on her, and rub his penis on her inner thigh. 

When Hooks and Maxine moved into a new house, he would put her 

on the step stool in the laundry room, put cocoa butter on her, and rub 

his penis against her vagina. Afterwards, Hooks would give her a 

paper towel, and she would clean the cocoa butter and “white goopey 

stuff” off of herself. Hooks stopped touching C.H. when she was 

eleven. When she was five years old, C.H. drew a picture of what was 

happening and gave it to Maxine, but Maxine told C.H. to stop lying.

In 2001, Maxine and Hooks adopted twin sons belonging to Maxine’s 

cousin, Helen. In 2006 through mid-2008, Maxine and Hooks also
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took care of two more of Helen’s children, including her daughter 

L.Y., who was born in June 1998, while Helen was incarcerated. 

After Helen learned of C.H. and I.W.’s allegations, L.Y. told Helen 

that Hooks had also touched her.

Hooks v. State, No. 82A01-1005-CR-220, slip op. at *1, 941 N.E.2d 567 (Ind. Ct. 

App. Jan. 26, 2011), trans. denied (citations omitted).

[4] The State charged Hooks with three counts of child molesting, one as a Class A 

felony, alleging sexual intercourse with L.Y., and two as Class C felonies, 

alleging fondling or touching of I.W. and C.H., respectively. The State later 

amended the charging information to allege two more Class A felony child 

molesting counts, for having engaged in sexual intercourse with I.W. and with 

C.H. 

[5] A four-day jury trial was held in March and April 2010. Hooks was represented 

by attorney counsel Steven Bohleber both before and during trial. Bohleber 

conducted pretrial discovery, including written discovery and multiple 

depositions. At trial, the State presented the testimony of eight witnesses, and 

the defense called five witnesses, including Hooks. During trial, L.Y. became 

unresponsive to questions, having answered “only a fraction of the questions 

asked” and “most of her answers were barely audible or inaudible.” Id. at *2. 

Consequently, Hooks moved to strike L.Y.’s testimony. Although the trial 

court denied the motion, it later terminated the direct examination and 

instructed the jury not to consider L.Y.’s testimony, finding that it was 

insufficiently probative and the jury could not consider it. The trial court then 

granted a directed verdict regarding Count I, Class A felony child molesting,
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which had alleged that Hooks engaged in sexual intercourse with L.Y. At the 

close of the State’s evidence, Hooks moved for and the trial court granted 

directed verdicts on the other two Class A felonies as well, based on lack of 

evidence as to intercourse with I.W. and C.H. 

[6] The jury found Hooks guilty of the two remaining Class C felonies, and the trial 

court sentenced him to two consecutive six-year sentences. Id. On direct 

appeal, Hooks asserted that the trial court erred by not striking certain witness 

testimony and claimed that the evidence was insufficient to sustain his 

convictions. Id. at *2-4. This court affirmed his convictions. Id. at *4. 

[7] On August 4, 2011, Hooks filed a pro se petition for post-conviction relief, and 

after the Public Defender of Indiana filed an appearance on his behalf, Hooks 

filed an amended petition, alleging that trial counsel: (1) failed to object to, or 

prevent the introduction of, evidence “that Hooks threatened to kill people, 

pulled guns on people, fired guns at persons and residences, possessed weapons, 

and had a violent character”; (2) made claims in opening statement that he 

knew or should have known would not be supported by trial evidence and, in 

closing argument, failed to advocate in line with Hooks’s trial testimony; and 

(3) failed to object during the State’s closing argument when the prosecutor 

mentioned matters not in evidence. Appellant’s App. at 46. 

[8] The post-conviction court held a two-day hearing. Bohleber testified at the 

hearing at length, and an expert who reviewed the trial record of proceedings 

also testified, opining that Bohleber performed ineffectively in Hooks’s defense. 
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In December 2014, the post-conviction court entered written findings of fact 

and conclusions thereon denying post-conviction relief. Hooks now appeals.

Discussion and Decision

[9] Post-conviction proceedings are not “super appeals” through which a convicted 

person can raise issues that he did not raise at trial or on direct appeal. 

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied 537 U.S. 839 

(2002); Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013) (quoting 

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)), trans. denied. Instead, postconviction proceedings afford petitioners a limited opportunity to raise issues 

that were unavailable or unknown at trial and on direct appeal. Hinesley, 999 

N.E.2d at 981. Post-conviction proceedings are civil in nature, and petitioners 

bear the burden of proving their grounds for relief by a preponderance of the 

evidence. Ind. Post-Conviction Rule 1(5); Garcia v. State, 936 N.E.2d 361, 363 

(Ind. Ct. App. 2010), trans. denied. A petitioner appealing from the denial of 

post-conviction relief stands in the position of one appealing from a negative 

judgment. Id. A petitioner who appeals the denial of post-conviction relief 

faces a rigorous standard of review, as the reviewing court may consider only 

the evidence and the reasonable inferences supporting the judgment of the postconviction court. McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012) 

(citing Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. 

denied), trans. denied. The defendant must establish that the evidence, as a 

whole, unerringly and unmistakably leads to a conclusion opposite that reached 

by the post-conviction court. Hinesley, 999 N.E.3d at 981; Garcia, 936 N.E.2d at 
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363. “‘In other words, the defendant must convince this Court that there is no

way within the law that the court below could have reached the decision it 

did.’” Wilkes, 984 N.E.2d at 1240 (quoting Stevens v. State, 770 N.E.2d 739, 745 

(Ind. 2002), cert. denied 540 U.S. 830 (2003)) (emphasis in original).

[10] Hooks claims that the post-conviction court erred by concluding that he 

received effective assistance of counsel. To prevail on a claim of ineffective 

assistance of counsel, a petitioner must demonstrate both that his counsel’s 

performance was deficient and that he was prejudiced thereby. Wilkes, 984 

N.E.2d at 1240 (citing Strickland v. Washington, 466 U.S. 668 (1984)). This is 

the so-called Strickland test. This standard first asks whether, considering all the 

circumstances, counsel’s actions were “reasonable[ ] under prevailing 

professional norms.” Id. As our Supreme Court has explained,

Counsel is afforded considerable discretion in choosing strategy and 

tactics, and we will accord those decisions deference. A strong 

presumption arises that counsel rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional 

judgment. The Strickland Court recognized that even the finest, most 

experienced criminal defense attorneys may not agree on the ideal 

strategy or the most effective way to represent a client. Isolated 

mistakes, poor strategy, inexperience, and instances of bad judgment 

do not necessarily render representation ineffective.

Timberlake, 753 N.E.2d at 603 (citations and quotations omitted).

[11] Even if counsel’s performance is deficient, the defendant must demonstrate that 

counsel’s performance actually prejudiced the defense. Wilkes, 984 N.E.2d at 

1241. “‘To establish the requisite prejudice, a petitioner must show there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of 
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the proceeding would have been different.’” McCullough, 973 N.E.2d at 74-75. 

Our Supreme Court has stated that a “reasonable probability” is a probability 

sufficient to undermine confidence in the outcome. Smith v. State, 765 N.E.2d 

578, 585 (Ind. 2002). The two elements of Strickland are separate and 

independent inquiries. Failure to satisfy either prong will cause the claim to 

fail, but most ineffective assistance of counsel claims can be resolved by a 

prejudice inquiry alone. McCullough, 973 N.E.2d at 75. 

A. Evidence of Violence

[12] Hooks claims that his trial counsel rendered constitutionally ineffective 

assistance by allowing into evidence certain testimony that Hooks owned guns 

and knives and had used them in a way to indicate a violent character. More 

specifically, Hooks challenges trial counsel’s failure to prevent the introduction 

of certain evidence, including the following: (1) I.W.’s testimony that Hooks 

told her that he “was going to kill [her] daddy” “because he didn’t like him”

(Trial Tr. at 59-60) ; (2) I.W.’s testimony that she observed Hooks and her father 

during an argument, and Hooks “got a gun” (Id. at 66); (3) Aleta’s testimony 

that she had reason to be fearful of Hooks because he kept weapons in the 

house, she knew “what he was capable of,” and that, when she was eighteen or 

nineteen years old, Hooks had “shot my house up, and tried to shoot my kids’ 

dad, my oldest kids’ dad” (Id. at 163-64); (4) Aleta’s testimony that her 

daughter V.H., who was not a victim in this case, said that Hooks “pulled guns 

on her” (Id. at 167); (5) Aleta’s testimony, in response to a juror question 

regarding whether Hooks kept any guns in a closet by the laundry room, that 
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Hooks kept a gun and a sword in a hall closet by the laundry room; (6) C.H.’s 

testimony that Hooks had a silver gun that “he pointed [] at me but I wasn’t 

scared of it” (Id. at 205); (7) V.H.’s testimony that Hooks “put a gun to my head 

before and asked me if I was scared” . . . “just to spite me[,] but he doesn’t scare 

me.” (Id. at 231); (8) and Helen’s testimony that when she and relatives went to 

Hooks’s house to confront him after Helen’s daughter L.Y. alleged that he had 

molested her, Hook “put a gun on us, and we all jumped back in the car and 

left.” Id. at 252. Hooks maintains this “barrage of extrinsic evidence regarding 

his conduct and character” was irrelevant to the charged offenses and 

prejudiced him, claiming that it “stripped [him] of his presumption of 

innocence, predisposed the jury to find him guilty, and made a fair trial 

impossible.” Appellant’s Br. at 10-11; see also id. at 25.

1

 We disagree. 

[13] At the post-conviction hearing, Hooks’s post-conviction counsel examined 

Bohleber about the various instances at trial when witnesses testified to Hooks 

keeping a gun or knife in the house and/or in a closet near the location of the 

molestations, or pointing a gun at people on specific occasions, or having made 

threats to kill Maurice because he did not like him. Post-conviction counsel 

inquired of Bohleber why he did not file a motion in limine to keep out such 

evidence, or object during trial on relevance grounds or some other grounds, 

including objecting to juror questions that eventually were posed asking if 

 

1 Hooks claims that trial counsel should have objected to the evidence “on the basis that it violated Ind. 

Evidence Rule 402, 404(a), and 404(b),” and the trial court “would have had no choice but to sustain the 

objections.” Appellant’s Br. at 18. 
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Hooks kept a gun in his house and if I.W. had ever seen him with a gun. 

Bohleber conceded that, in hindsight, the witnesses’ testimonies in some 

instances may have been irrelevant. However, Bohleber explained, as he 

understood the State’s strategy, the State intended to show that Hooks 

controlled the girls through use of, or possession of, the guns and knives, and 

thus such evidence was, or could have been considered, relevant from the 

State’s perspective. Bohleber also testified that when evidence of Hooks’s 

possession of or pointing of a gun initially came into evidence, he viewed it as 

“simply another of the spurious allegations” against Hooks, and did not view it 

as a major threat to the defense’s case; Bohleber conceded, however, that as 

trial progressed, more evidence of such incidents was introduced and, in a 

sense, that angle “developed a life of its own,” which he had not anticipated. 

PCR Tr. at 21.

[14] We have recognized, “[A]s a trial unfolds, events occur, some unexpected, that 

counsel must react to in real time. Thus, an appellate court cannot compare 

counsel’s real-time performance to what might have been done with the benefit 

of hindsight.” McCullough, 973 N.E.2d at 75. Even assuming, as Hooks claims, 

that Bohleber’s performance was deficient and that he missed multiple 

opportunities to “stem the tide of extrinsic bad act and character evidence,” 

Appellant’s Br. at 15, Hooks must show that he was prejudiced by the challenged 

evidence, i.e., that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. 

McCullough, 973 N.E.2d at 74-75. We find that Hooks has not met this burden. 
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[15] When Hooks testified, he denied molesting I.W. and C.H., and he denied ever 

threatening his grandchildren with guns or knives. He also denied that he ever 

shot at Aleta’s prior home, as she testified that he did. C.H., a victim in this 

case, testified that Hooks had previously pulled a gun on her but she “wasn’t 

scared[.]” Trial Tr. at 205. Her sister, V.H., who was not a victim in this case,

also testified that Hooks had put a gun to her head “to spite [her]” but reported, 

“[H]e doesn’t scare me.” Id. at 231. While I.W. testified that she had seen 

Hooks wield a gun during an argument with her father, Maurice, and observing 

that scared her, I.W. did not indicate that Hooks held a gun at her or put her in 

fear or threatened her not to tell. In fact, she testified that she did not disclose 

sooner because she was afraid her mother would be mad. Thus, the girls’ 

testimonies did not indicate fear of Hooks because of the guns or knives kept in 

his home, nor did their testimony support the theory that he used those items to 

control them, as the State may have been trying to establish. In line with that, 

the State did not refer to any of that evidence in closing argument or make a 

propensity argument based on it. 

[16] This was a case of minor girls testifying to having been molested by Hooks, 

each giving descriptions of where and how it happened – including detail about 

step stools and cocoa butter and where other members of the household were at 

the time – and Hooks testifying that the molestations did not happen. The jury 

heard the evidence and, evidently, credited the children’s testimony over 

Hooks’s denial. Hooks has not established that but for trial counsel’s alleged

errors regarding the admission of evidence concerning guns or knives or violent 
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incidents, there is a reasonable probability that the result of the proceeding 

would have been different. 

B. Trial Counsel’s Opening Statement and Closing Argument 

[17] Hooks also claims that Bohleber provided ineffective assistance by (1) making

claims in opening statement that he knew or should have known would not be 

supported by the evidence, and (2) adopting a different defense theory in closing 

argument, which contradicted and undermined Hooks’s testimony. We 

examine each argument in turn.

[18] Bohleber explained at the post-conviction hearing that, initially, the defense 

strategy was to illustrate that there was family discord and that Aleta and Helen 

had coached their daughters to make the accusations against Hooks in order to 

harm him or gain advantage over him. In accordance with that strategy, 

Bohleber’s opening statement told the jurors that Aleta and Helen had “long 

been at odds” with Hooks and his wife, and he advised the jury to “question the 

motives of the parents[.]” Trial Tr. at 10. Bohleber told the jury that such 

family discord was evident because – and they would hear evidence that – Aleta 

was “in a contentious civil litigation with them at the time these allegations 

were made.” Id. Hooks points out that the trial evidence revealed that the 

lawsuit, which was a small claims suit for the return of Aleta’s furniture, was 

filed after the allegations were made. This, Hooks argues, shows that Bohleber’s 

opening statements were not supported by the trial evidence, which Hooks

argues Bohleber knew or should have known, and that by making factual 

assertions that were not supported by the evidence, Bohleber diminished the 
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integrity of his defense. He claims that Bohleber “was not prepared for trial and 

did not adequately represent [him].” Appellant’s Br. at 20. 

[19] Hooks mounts a similar claim that Bohleber, in his opening statement, told the 

jury they would hear a witness testify to having heard Aleta and Helen stating 

that they were “going to get Gene Hooks” and were “going to put him in jail[,]” 

Trial Tr. at 11, thus supporting the idea that the parents schemed “to get”

Hooks and the molestation accusations were simply falsehoods, made up to 

hurt Hooks. During trial, witness Thomas Payne testified to having heard 

Aleta and Helen “plotting against” Hooks and that Aleta stated she “was going 

to get that MF.” Id. at 378-79. However, Payne’s testimony revealed that he 

heard this conversation in or around May 2009, well after the allegations of 

abuse had been reported to the police in July or August 2008. Hooks argues 

that it may have appeared to the jury that Aleta’s statement that she “was going 

to get” Hooks was motivated, not by family strife or vengeance, but instead on 

parental anger about the allegations that the children had disclosed. Thus,

Hooks asserts, Payne’s testimony may have worked against Hooks as opposed 

to in his favor. Hooks argues that Bohleber should have known that Payne’s 

testimony would contradict his opening statement and potentially be harmful 

rather than helpful to his defense, and his representation was thus ineffective. 

[20] We are not persuaded that Bohleber’s opening statement about Aleta’s lawsuit 

or Payne’s anticipated testimony, even if they constituted deficient 

performance, ultimately prejudiced Hooks, given the other evidence presented 

and in view of the full record. In the opening statement, Bohleber suggested 
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that the family was at odds, resulting in false allegations being made against 

Hooks, and in support of that contentious relationship, Bohleber presented 

evidence during trial of Aleta’s pending lawsuit against Maxine. He also called 

Payne as a witness to testify about statements he overheard Aleta make 

suggesting she was out to get Hooks. This tactic was consistent with Bohleber’s 

opening statement. While Hooks points out that the trial testimony was not 

entirely consistent with what was forecasted in the opening statement – i.e., the 

lawsuit was filed after and not before the allegations came to light, and, 

likewise, Aleta’s statement as overheard by Payne was made after, not before 

the allegations by the children were made – we do not find that the alleged 

errors were sufficient to undermine confidence in the outcome of the 

proceedings. 

[21] Hooks next claims that his trial counsel was ineffective because he adopted “a 

new defense theory” in closing that contradicted the opening statement as well 

as Hooks’s testimony. Appellant’s Br. at 19. Bohleber explained at the postconviction hearing that, initially, the defense strategy illustrated that there was 

significant family discord and that Aleta and Helen had coached their daughters 

to make the accusations against Hooks in order to harm him or gain advantage 

over him. In accord with that plan, Bohleber intended to call a variety of family 

members as witnesses to illustrate the “war” between camps of the family. PCR 

Tr. at 80. However, after Hooks no longer faced three Class A felonies, the 

plan shifted away from calling a myriad of family members, which posed its 

own risks, to having Hooks testify to deny the girls’ accusations. 
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[22] During trial, Hooks testified that he believed Aleta and Helen had coached their 

daughters to falsely accuse him, which was consistent with the strategy 

suggested in Bohleber’s opening statement. In closing argument, Bohleber 

argued that studies have shown that children can make up allegations of 

molestation for a variety of reasons, whether because someone suggested it to 

them, or peer pressure, or they simply do it on their own. Hooks argues that

because trial counsel did not strictly stick with the original premise that it was 

the parents that were coaching the girls, trial counsel thereby “abandon[ed] this 

defense theory” and likewise abandoned his client. Appellant’s Br. at 21. The 

post-conviction court determined, and we agree, that “the alleged change in 

theories of defense is not [] as pronounced . . . as advocated by the Petitioner.” 

Appellant’s App. at 115. 

[23] At the post-conviction hearing, Bohleber acknowledged that, after the defense

obtained a directed verdict on the three Class A felonies, leaving the two Class 

C felonies pending, the defense strategy shifted somewhat, explaining that he 

no longer felt it was necessary to call the family witnesses, which could pose 

risks for Hooks, electing to change the defense strategy somewhat, focusing 

more on the children’s accusations versus Hooks’s personal denial. We 

recognize the defense theory expanded from the somewhat narrow position that 

it was entirely the parents’ idea to make up these accusations, which was 

suggested in the opening statement, to the wider proposition that it is proven 

fact that children have been known to make up accusations of sexual abuse for 

a number of reasons, whether because someone told them to do so, or they 
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simply did it on their own accord. However, we are not persuaded that this 

change abandoned Hooks or contradicted his testimony. We “will not lightly 

speculate as to what may or may not have been an advantageous trial strategy 

as counsel should be given deference in choosing a trial strategy which, at the 

time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 

40, 42 (Ind. 1998). As we have recognized, “[j]ust because trial counsel is 

unable to pursue a defensive strategy as effectively as he or she wanted to does 

not mean that the plan was a bad plan.” McCullough, 973 N.E.2d at 76. 

“‘Strickland does not guarantee perfect representation, only a reasonably 

competent attorney.’” Woodson v. State, 961 N.E.2d 1035, 1041-42 (Ind. Ct.

App. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 110 (2011)), trans. denied. 

Here, our review of the record reveals that at the outset of trial, Bohleber 

presented a reasonable and sound defense strategy, and although he modified it 

based on events that occurred during trial, his performance during trial was 

aimed at executing the deliberate defense strategy and was not deficient or 

prejudicial to Hooks. 

C. State’s Closing Argument

[24] Hooks also alleges that trial counsel was ineffective for failing to object during 

the State’s closing argument. Specifically, he argues that, when the prosecutor

commented that the victims’ testimonies matched their prior statements to 

police, Bohleber should have objected because there had been no trial evidence 

concerning the substance of what the children had said during police interviews. 

That is, the statement by the prosecutor was impermissible commentary upon 
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matters not in evidence and, instead, reflected the prosecutor’s personal 

knowledge of the case. The post-conviction court characterized the 

prosecutor’s comment as “inappropriate,” stating that it “should not have been 

presented to the jury” because, although it was established during trial that a

complaint had been made and investigated by police and that the children had 

been interviewed, “the [] details of those statements had not been admitted for 

the jury’s consideration[.]” Appellant’s App. at 113. The post-conviction court 

concluded, however, that any error in failing to object represented an “isolated 

incident” and did not amount to either deficient performance or prejudice to 

Hooks. Id. at 115. Hooks claims that the post-conviction court was clearly 

erroneous in that regard, given that the State’s case was based on the testimony 

of I.W. and C.H., and the prosecutor’s comment “unfairly bolstered their 

credibility in the eyes of the jury.” Appellant’s Br. at 23. 

[25] Initially, we note that Hooks claims that the post-conviction court applied an 

incorrect standard when it determined that Hooks did not suffer prejudice. The 

post-conviction court found that it was not likely that any objection, even 

followed with an admonishment, “would have led to a different result in the 

trial.” Appellant’s App. at 115 (Conclusion No. 9). Hooks argues that the 

correct standard is whether Hooks established by a preponderance of the 

evidence that there was a “reasonable probability” of a different result but for 

counsel’s deficient conduct. Appellant’s Br. at 23. We reject Hooks’s claim that 

the trial court utilized an improper standard. The post-conviction court’s order 

expressly recognized, and indeed defined, the “reasonable probability” 
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standard. Appellant’s App. at 114. After reviewing the post-conviction court’s 

order as a whole, we find that Hooks’s reliance upon the singular phrase 

“would have led to a different result in the trial” does not consider the full 

context of the post-conviction court’s decision, and we are satisfied that the 

post-conviction court applied the proper standard when reaching its decision. 

[26] The State concedes that it was inappropriate for the prosecutor to have 

remarked that the children’s trial testimony matched their statements to police 

because the substance of those statements was not in evidence. However, the 

State asserts, and we agree, “just because a matter is objectionable does not 

mean that it constitutes deficient performance not to object.” Appellee’s Br. at 

21. Here, Bohleber testified at the post-conviction hearing that he rarely objects 

during a closing argument because (1) closing arguments of counsel are not 

evidence, which the jury is told, and the jury is equipped to “sort out the facts,” 

and (2) in his opinion, objections at that stage are “rude and intrusive,” and, 

further, objections during closing argument are often counterproductive and 

create a risk of alienating jurors. PCR Tr. at 77-79. He explained, in his 

experience and opinion, an objection may draw more attention to any certain 

comment by opposing counsel and, further, might appear to the jury as if 

counsel is trying to hide something. 

[27] It is not our job to second-guess trial counsel’s strategy and tactics, or suggest 

whether some other course would have been better. We are to determine 

whether the post-conviction court’s determination as to ineffectiveness, which 

assessed whether the representation was deficient and/or prejudicial, was 
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clearly erroneous. Here, we find no error with the post-conviction court’s 

determination that error, if any, for not objecting to the prosecutor’s 

“inappropriate” commentary (regarding the girls’ testimony as being consistent 

with their statements to police) was not prejudicial to Hooks. I.W. and C.H. 

gave consistent and detailed testimony about the acts perpetrated by Hooks 

against them. The jury was aware that the girls had spoken with police. We 

are not persuaded that the jury would not have believed their testimony but for 

the prosecutor’s argument in closing that the girls’ trial testimony was 

consistent with what they said during police interviews. Given the record 

before us, we find no reasonable probability that but for the alleged error, i.e., 

not objecting, the result of the proceeding would have been different. 

[28] The State maintains that counsel’s performance, as a whole, was not deficient, 

particularly given that trial counsel succeeded in having three Class A felonies 

removed from the jury’s consideration. While we agree that this was 

commendable, it was still appropriate that we examine the specific complaints 

raised by Hooks regarding trial counsel’s performance. Having done so, we 

conclude that Hooks has failed to carry his burden to show that the evidence as 

a whole leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court. Therefore, we affirm the post-conviction 

court’s judgment.

[29] Affirmed.

Vaidik, C.J., and Bradford, J., concur.