MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Dec 18 2018, 9:46 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darren Bedwell                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Appellate Division
                                                        Ellen H. Meilaender
Indianapolis, Indiana                                   Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Otis B. Jetter,                                         December 18, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-428
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        49G04-1212-FA-82650
                                                        49G04-1411-PC-52294



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018                Page 1 of 17
[1]   Otis B. Jetter appeals his conviction for child molesting as a class A felony and

      the denial of his petition for post-conviction relief. He raises two issues which

      we revise and restate as:


        I.    Whether the trial court abused its discretion in instructing the jury; and

       II.    Whether Jetter was denied effective assistance of trial counsel.


      We affirm.


                                      Facts and Procedural History

[2]   On December 24, 2012, the State charged Jetter with: Count I, child molesting

      as a class A felony, which alleged that Jetter “on or between July 1, 1996 and

      November 28, 1996, being at least twenty-one (21) years of age, did perform or

      submit to deviate sexual conduct, an act involving” his penis and the anus of

      A.S., a child who was under the age of fourteen years, “that is: thirteen (13)

      years of age”; Count II, child molesting as a class B felony; and Count III, child

      molesting as a class B felony, which alleged that Jetter “on or about or between

      November 29, 1994 and November 28, 1995, did perform or submit to deviate

      sexual conduct, an act involving” his penis and the mouth of A.S., a child who

      was then under the age of fourteen years, “that is: twelve (12) years of age.”

      Appellant’s Appendix Volume II at 43-44. On December 9, 2013, the court

      dismissed Count II at the State’s request and renumbered Count III as Count II

      for purposes of trial.


[3]   On December 9 and 10, 2013, the court held a jury trial. A.S. testified that he

      was thirty-one years old, that he started attending Pilgrim Baptist Church when
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 2 of 17
      he was twelve years old when Jetter was the pastor, and that Jetter would

      sometimes transport him to and from church. A.S. testified that Jetter told him

      that they would be going on a fishing outing but drove A.S. to an old airport,

      put his penis in A.S.’s mouth, ejaculated, and told him not to tell anyone what

      he had done. When asked how old he was when this happened, A.S. answered:

      “Twelve going on 13.” Trial Transcript Volume I at 53. When asked how he

      remembered that, A.S. answered: “I recall because my birthday was coming up

      to be 13 and my family threw me a birthday party. And I remember I got to

      drink some O’Doul’s. I thought that was liquor and it wasn’t.” Id.


[4]   A.S. testified that Jetter took him to a side street in Haughville after one service,

      pulled over, put his penis in A.S.’s anus, ejaculated, and told A.S. to go in the

      restroom of a gas station and wipe himself off so that A.S. would have no

      evidence on him. A.S. testified that he was thirteen years old when this

      incident occurred. When asked how much time passed between the incident at

      the airport and the one at the side street, A.S. answered: “Just maybe – maybe

      six months to almost a year. It wasn’t that far behind.” Id. at 59.


[5]   A.S. also testified that Jetter drove him to a hotel another evening after church,

      penetrated his anus with his penis, and ejaculated. When asked when this

      incident occurred, A.S. answered: “Going on 14 – 13 going on almost 14.” Id.

      at 58. He testified that the motivating factor in telling his great aunt about what

      happened was seeing Jetter with another young man in church. On cross-

      examination, A.S. testified that the time between the first incident and the last

      incident was “six months to almost a year.” Id. at 126. On redirect

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 3 of 17
      examination, when asked how much time had passed between “the first

      incident and the last time” Jetter ever touched him, A.S. answered: “The first

      two was close. That next one was right before I was turning my 14 th birthday.

      Not my 14th birthday, before I was turning 14. Not my 14th birthday. Not my

      14th birthday, but it was right before I even turned 14.” Id. at 142-143.


[6]   The State also presented the testimony of A.S.’s great aunt, A.S.’s stepmother,

      A.S.’s brother, Indianapolis Metropolitan Police Detective Genae Cook, and

      Willie Rupert, a trustee of the Pilgrim Baptist Church. Jetter’s counsel cross-

      examined the witnesses.


[7]   After the State rested, Jetter’s counsel stated: “I’d move the Court to – for a

      dismissal because the evidence doesn’t support the charges that’s made at this

      point in time. And I support the (unintelligible) dismissal against the State and

      for Dr. Jetter – Reverend Jetter.” Trial Transcript Volume II at 289-290. The

      prosecutor stated that she believed the State had proven the elements of both

      charges beyond a reasonable doubt through the testimony of A.S., A.S.’s

      stepmother, A.S.’s brother, Rupert, and Detective Cook. The court denied the

      motion.


[8]   Defense counsel presented the testimony of Robert Louis Smith regarding the

      vehicles Jetter had owned and the testimony of Barbara Gaither who stated that

      her grandchildren were allowed to spend nights with Jetter. Jetter testified that

      he was born on August 31, 1942, and that he did not molest A.S. On cross-

      examination, Jetter testified that A.S. never rode in his vehicle and that he told


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 4 of 17
      the detective that A.S. did ride in his vehicle “[b]ecause I probably didn’t

      understand what she was saying.” Id. at 323. Jetter agreed that A.S. had no

      reason to make up the allegations.


[9]   The State proposed the following jury instruction:


              Time is not an element of the crime of Child Molesting. If you
              find that the evidence available to the State of Indiana does not
              permit the State to specify the exact date of the offense, and if
              you find beyond a reasonable doubt that [Jetter] committed the
              offenses within reasonable proximity to the date alleged, then the
              State has met its burden of proof on the issue of the time of the
              offense.


      Appellant’s Appendix Volume II at 212. Jetter’s counsel objected and asserted

      that “there’s been no challenge to the case or in the testimony about the time on

      this other reporting,” that “[w]hether or not the statute of limitations apply, or

      when it was reported, or how the charges were filed,” and that “unless [the

      jurors] are told, this has [sic] no reason to think it in the first place.” Trial

      Transcript Volume II at 341-342. He also stated:


              I’m not challenging whether or not it’s good law, Your Honor.
              What my argument is, is there’s been no challenge. This is not in
              order to be dismissed based on the child’s inability to remember a
              date. This is not a statute of limitations case. It does not cover
              any issue that’s been contested during the hearing. There’s no
              basis for giving the instruction. There’s been no evidence that
              was challenged on that issue.


      Id. at 342. The court stated:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 5 of 17
                 This doesn’t refer to the statute of limitations. There was
                 questioning during the trial that was presented to the jury that
                 there was a previous time during which the complaining witness
                 disclosed to a person named Tamika. So there was some
                 mention of that, and this does elude – this does say a little more
                 about whether time is an element or not, and it is a statement
                 that is good law.


       Id. at 343. The court overruled the objection and gave the instruction as Final

       Instruction No. 20. The jury found Jetter guilty of child molesting as a class A

       felony and child molesting as a class B felony.


[10]   On January 14, 2014, the court held a sentencing hearing. Jetter’s trial counsel

       stated:


                 First, Your Honor, if I may, I would move the Court to grant
                 Otis Jetter a new trial based on the fact that I believe that I was
                 ineffective at his trial, and in the preparation of his trial. I would
                 point the Court to one error that I’m sure the Court observed and
                 I made the motion to dismiss in front of the jury in which I knew
                 your ruling would be that they had met their burden at that time
                 of the trial. I think it improperly and heavily influenced the jury.
                 And I failed to correct that error by either attempting myself to
                 explain to the jury what that motion meant and the affect [sic] it
                 had legally. And I failed to ask the Court for a curative
                 instruction at the time when I think the Court may have been
                 willing to grant my request for a curative instruction.


       Id. at 401-402. The prosecutor argued that defense counsel’s strategic decisions

       were made during the course of the trial, that defense counsel provided

       adequate and proper representation, and that the facts and A.S.’s testimony

       convicted Jetter. Upon questioning by the court, defense counsel stated that he

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 6 of 17
       had been in practice since 1978, practiced in major felony courts, and had been

       a prosecutor. The court stated: “[I]t appeared to me that the decisions you were

       making were those that you felt at the time were in the best interest of your

       client. I don’t believe that what you’ve raised are things that would place the

       Defendant in grave peril. And for those reasons, I would deny your motion.”

       Id. at 404. The court sentenced Jetter to thirty years for child molesting as a

       class A felony and ten years for child molesting as a class B felony and ordered

       the sentences to be served consecutive to each other.


[11]   On January 29, 2014, Jetter filed a notice of appeal. On June 3, 2014, this

       Court granted Jetter’s motion to remand to the trial court and dismissed the

       appeal without prejudice so that Jetter could pursue post-conviction relief

       before the trial court.1 On November 14, 2014, Jetter filed a petition for post-

       conviction relief alleging that he received ineffective assistance of counsel.


[12]   On June 21, 2016, the court held an evidentiary hearing. Jetter’s trial counsel

       testified that he practiced since 1978 and his practice had been largely criminal

       defense work. He testified that he admitted to the trial court that he had erred

       and thought that the error had caused Jetter to be improperly convicted. On



       1
         The Davis/Hatton procedure involves a termination or suspension of a direct appeal already initiated, upon
       appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the
       trial court. Taylor v. State, 929 N.E.2d 912, 917 n.1 (Ind. Ct. App. 2010) (citing State v. Lopez, 676 N.E.2d
       1063, 1069 (Ind. Ct. App. 1997) (citing Hatton v. State, 626 N.E.2d 442 (Ind. 1993); Davis v. State, 267 Ind.
       152, 368 N.E.2d 1149 (1977)), trans. denied), trans. denied. Ind. Appellate Rule 37(A) (“At any time after the
       Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed
       without prejudice or temporarily stayed and the case remanded to the trial court . . . for further proceedings.
       The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise
       necessary for the administration of justice.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018                    Page 7 of 17
       February 5, 2018, the court entered a twenty-one page order denying Jetter’s

       post-conviction petition.


                                                   Discussion

                                                         I.


[13]   The first issue is whether the trial court abused its discretion in instructing the

       jury. Generally, “[t]he purpose of an instruction is to inform the jury of the law

       applicable to the facts without misleading the jury and to enable it to

       comprehend the case clearly and arrive at a just, fair, and correct verdict.”

       Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150,

       124 S. Ct. 1145 (2004). Instruction of the jury is generally within the discretion

       of the trial court and is reviewed only for an abuse of that discretion. Id. at

       1163-1164. To constitute an abuse of discretion, the instruction given must be

       erroneous, and the instructions taken as a whole must misstate the law or

       otherwise mislead the jury. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999),

       reh’g denied, cert. denied, 531 U.S. 830, 121 S. Ct. 83 (2000).


[14]   Before a defendant is entitled to a reversal, he must affirmatively show that the

       erroneous instruction prejudiced his substantial rights. Lee v. State, 964 N.E.2d

       859, 862 (Ind. Ct. App. 2012) (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind.

       Ct. App. 2005)), trans. denied. An error is to be disregarded as harmless unless it

       affects the substantial rights of a party. Id. (citing Oatts v. State, 899 N.E.2d 714,

       727 (Ind. Ct. App. 2009); Ind. Trial Rule 61).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 8 of 17
[15]   Jetter argues that Final Instruction No. 20 was unnecessary. He contends that

       “it was essential for the State to prove that Count 1 occurred between the dates

       charged in the information; that is, that Jetter committed the crime between

       July 1, 1996 and the alleged victim’s fourteenth birthday in November 1996.”

       Appellant’s Brief at 17. He argues that A.S.’s testimony left reasonable doubt

       about whether Jetter committed the offense charged in Count I before or after

       the July 1, 1996 statutory amendment, while Instruction No. 20 expressly

       permitted the jury to convict him of a class A felony, regardless of the timing, as

       long as it occurred within reasonable proximity to the date alleged. He asserts

       that Instruction No. 20 led the jury to believe that he could be convicted of a

       class A felony for conduct occurring before the 1996 amendment to Ind. Code §

       35-42-4-3(a)(1) took effect, and thereby created a risk that the jury would

       convict him of an ex post facto crime. Jetter also argues that the lack of a specific

       instruction on jury unanimity resulted in fundamental error. The State argues

       that Final Instruction No. 20 was not unnecessary and that no fundamental

       error resulted.


[16]   With respect to Jetter’s argument that Final Instruction No. 20 was

       unnecessary, we observe that Jetter’s trial counsel stated that he was not

       challenging whether the instruction was good law. Indeed, the Indiana

       Supreme Court has held that “[i]n general, the precise time and date of the

       commission of a child molestation offense is not regarded as a material element

       of the crime.” Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011), reh’g denied.

       The Court also held that it had “long recognized ‘that time is not of the essence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 9 of 17
       in the crime of child molesting. It is difficult for children to remember specific

       dates, particularly when the incident is not immediately reported as is often the

       situation in child molesting cases.’” Id. (quoting Barger v. State, 587 N.E.2d

       1304, 1307 (Ind. 1992) (citations omitted), reh’g denied). Given the time elapsed

       between the offenses and the trial and the Supreme Court’s holding in Baker, we

       cannot say that the trial court abused its discretion on the basis that Final

       Instruction No. 20 was unnecessary.


[17]   We turn to Jetter’s assertion that it was essential for the State to prove that

       Count I occurred between the dates charged in the information, “that is, that

       Jetter committed the crime between July 1, 2006 and the alleged victim’s

       fourteenth birthday in November 1996” because “[o]ne day later, and the

       victim would be too old for that statute to apply” and “[o]ne day earlier, and

       Jetter would be subject only to a class B felony conviction under the previous

       version of the statute.” Appellant’s Brief at 17.


[18]   Prior to July 1, 1996, Ind. Code § 35-42-4-3 provided that “a person, who with

       a child under fourteen (14) years of age, performs or submits to sexual

       intercourse or deviate sexual conduct commits child molesting, a Class B

       felony.” The Legislature amended the statute to provide that effective July 1,

       1996, “the offense is a Class A felony if . . . it is committed by a person at least

       twenty-one (21) years of age . . . .” The charging information for Count I

       alleged that Jetter “on or about or between July 1, 1996 and November 28,

       1996, being at least twenty-one (21) years of age, did perform or submit to

       deviate sexual conduct, an act involving a sex organ, that is: penis of [Jetter]

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 10 of 17
       and the anus of [A.S.], with [A.S.], a child who was then under the age of

       fourteen (14) years, that is: thirteen (13) years of age . . . .” Appellant’s

       Appendix Volume II at 43.


[19]   At trial, Jetter’s counsel stated that Final Instruction No. 20 “does not cover

       any issue that’s been contested during the hearing” and “[t]here’s been no

       evidence that was challenged on that issue.” Trial Transcript Volume II at 342.

       Jetter did not object on the basis of the amendment of the statute. Thus, Jetter

       has waived the issue for appellate review. See Benefield v. State, 904 N.E.2d 239,

       245 (Ind. Ct. App. 2009), trans. denied; see also Baker, 948 N.E.2d at 1178

       (observing the defendant did not object to the trial court’s instruction and

       accordingly waived any challenge to the instruction); Ind. Trial Rule 51(C)

       (“No party may claim as error the giving of an instruction unless he objects

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

       to which he objects and the grounds of his objection.”).


[20]   To the extent Jetter asserts that Instruction No. 20 constituted fundamental

       error, we observe that fundamental error is an extremely narrow exception that

       allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831,

       835 (Ind. 2006). It is error that makes “a fair trial impossible or constitute[s]

       clearly blatant violations of basic and elementary principles of due process . . .

       present[ing] an undeniable and substantial potential for harm.” Id. “This

       exception is available only in ‘egregious circumstances.’” Brown v. State, 929

       N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068

       (Ind. 2003)), reh’g denied. “Fundamental error is meant to permit appellate

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 11 of 17
       courts a means to correct the most egregious and blatant trial errors that

       otherwise would have been procedurally barred, not to provide a second bite at

       the apple for defense counsel who ignorantly, carelessly, or strategically fail to

       preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[21]   A.S. testified to two incidents in which Jetter penetrated his anus with Jetter’s

       penis. The first incident occurred on a side street in Haughville when A.S. was

       thirteen years old. The second incident occurred at a hotel before A.S.’s

       fourteenth birthday. Given that A.S. testified that the incident at the hotel

       occurred “right before” his fourteenth birthday, which Jetter acknowledges

       occurred in late November 1996,2 that Jetter does not argue that the incident at

       the hotel occurred before the July 1, 1996 amendment to the statute, and that

       the sole issue at trial was A.S.’s credibility, we cannot say that Jetter has

       demonstrated fundamental error. Trial Transcript Volume I at 142.


[22]   As for Jetter’s argument that the lack of a specific instruction on jury unanimity

       resulted in fundamental error, we observe that the Indiana Supreme Court held

       the following in Baker:


                [T]he State may in its discretion designate a specific act (or acts)
                on which it relies to prove a particular charge. However if the
                State decides not to so designate, then the jurors should be
                instructed that in order to convict the defendant they must either
                unanimously agree that the defendant committed the same act or



       2
        The transcript and Jetter’s brief omitted A.S.’s birthday. However, Jetter notes after the mention of A.S.’s
       birthday that “[t]he charging information specifies a particular date in late November.” Appellant’s Brief at 7
       n.2.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018                 Page 12 of 17
               acts or that the defendant committed all of the acts described by
               the victim and included within the time period charged.


       948 N.E.2d at 1177.


[23]   In Baker, the State did not designate which specific act or acts of child

       molestation that it would rely upon to support the charging information and the

       jury instruction did not advise the jury that in order to convict the defendant the

       jury must either unanimously agree that he committed the same act or acts or

       that he committed all of the acts described by the victim and included within

       the time period charged. Id. at 1178. The Indiana Supreme Court observed

       that the defendant neither objected to the trial court’s instruction nor offered

       any instruction of his own, held that the issue was waived, and reviewed it for

       fundamental error. Id. In doing so, the Court held that the “the only issue was

       the credibility of the alleged victims” and that “[t]he only defense was to

       undermine the young women’s credibility by, among other things, pointing out

       inconsistencies in their statements, and advancing the theory that they were

       lying in retaliation for Baker getting C.B. into trouble.” Id. at 1179. The Court

       concluded:


               Essentially “this case is about whether or not these kids will lie
               about [Baker] and make stuff up about him . . . .” See State v.
               Muhm, 775 N.W.2d [508, 521 (S.D. 2009)] (internal citation
               omitted) (rejecting on harmless error grounds a claim that trial
               court erred in failing to give jury unanimity instruction in child
               sexual assault case where defendant requested no such
               instruction). “Ultimately the jury resolved the basic credibility
               dispute against [Baker] and would have convicted the defendant

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 13 of 17
               of any of the various offenses shown by the evidence to have been
               committed.” See id. (emphasis in original). We conclude Baker
               has not demonstrated that the instruction error in this case so
               prejudiced him that he was denied a fair trial.


       Id. Similar to Baker, the only issue was the credibility of A.S. We conclude that

       Jetter has not demonstrated fundamental error.


                                                        II.


[24]   The next issue is whether Jetter was denied effective assistance of trial counsel.

       Before addressing Jetter’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. The petitioner in a post-conviction proceeding bears the

       burden of establishing grounds for relief by a preponderance of the evidence.

       Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).

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

       in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d

       at 679. On review, we will not reverse the judgment unless the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. Id. “A post-conviction court’s findings and

       judgment will be reversed only upon a showing of clear error – that which

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

       In this review, we accept findings of fact unless clearly erroneous, but we

       accord no deference to conclusions of law. Id. The post-conviction court is the

       sole judge of the weight of the evidence and the credibility of witnesses. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 14 of 17
[25]   Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner must show

       that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. Id. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[26]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 15 of 17
       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). 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).


[27]   Jetter claims his trial counsel was ineffective for moving for dismissal of the

       charges in the presence of the jury after the prosecution rested. The State

       argues that defense counsel was an effective advocate, this is the sort of isolated

       mistake that does not render trial counsel’s performance as a whole

       constitutionally inadequate, and Jetter was not prejudiced.


[28]   The post-conviction court’s order states in part:


               Ultimately, petitioner has not met his burden regarding
               prejudice, having failed to show a reasonable probability of a
               more favorable outcome at trial had [his trial counsel] either
               made his motion for directed verdict outside of the jury’s
               presence or requested a curative instruction. The motion for a
               directed verdict was exceptionally fleeting, as was the State’s
               response and court’s ruling. See Tr. 289-90. In addition, Jetter’s
               jury was instructed twice by the court of the following:

                       Your verdict should be based only on the evidence
                       admitted and the instructions on the law. Nothing that I
                       say or do is intended to recommend what facts or what
                       verdict you should find.

               Preliminary Instruction No. 9; Final Instruction No. 23.
               Without prejudice, this claim fails.


       Appellant’s Appendix Volume II at 14-15.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 16 of 17
[29]   In light of the relatively concise exchange regarding the motion to dismiss and

       the jury instructions, we cannot say that the evidence as a whole unerringly and

       unmistakably leads to a conclusion opposite that reached by the post-conviction

       court.


                                                   Conclusion

[30]   For the foregoing reasons, we affirm Jetter’s conviction and the denial of his

       petition for post-conviction relief.


[31]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-428 | December 18, 2018   Page 17 of 17