author: CRONE, Judge.

text:
    William HINESLEY, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A05-1302-PC-80.
    Court of Appeals of Indiana.
    Dec. 19, 2013.
    Rehearing Denied Feb. 20, 2014.

      F. Thomas Schornhorst, Oxford, MS, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Following a bench trial, William Hines-ley, III, was convicted of class A felony child molesting. After this Court affirmed his conviction on direct appeal, Hinesley filed a petition for post-conviction relief claiming that he was denied the effective assistance of trial counsel due to his counsel's deliberate strategic choice to permit the trier of fact to consider as substantive evidence hearsay statements attributed to the State's primary witnesses. Hinesley also claimed ineffective assistance due to his counsel's failure to object to improper vouching and uncharged misconduct testimony, and his counsel's failure to introduce a medical report into evidence at trial. In addition, Hinesley raised a freestanding claim of fundamental error due to alleged prosecutorial misconduct based upon the prosecutor's knowing introduction of the alleged inadmissible hearsay, vouching, and uncharged misconduct evidence. The postconviction court denied relief, and Hinesley now appeals. Concluding that the postconviction court properly determined that Hinesley failed to demonstrate that his counsel's performance was deficient or prejudicial, and further concluding that his claim of prosecutorial misconduct is unavailable, we affirm.

Facts and Procedural History

On direct appeal, another panel of this Court recited the facts underlying Hines-ley's conviction as follows: '

On the night of January 16, 2009, the Hinesley family was at home in Paragon, Indiana. Hinesley, his son William J. Hinesley, IV ("Billy"), who was twenty years old at the time, a foster daughter, V.V., who was thirteen years old at the time, and others were present. Eventually, Hinesley and V.V. were the only ones awake. They sat on a couch in the living room and talked as they watched a movie: Next, Hinesley got up and went into the kitchen. When he returned, he approached V.V. and pulled down her pants and underwear. Hines-ley got on top of V.V. and put his penis in her vagina. After a short period of time, V.V. tried to push Hinesley away, and he got up and left the room. V.V. got up and pulled up her pants.
Meanwhile, Billy was going to the kitchen to get a glass of water. He encountered V.V., who told him that she had just had sex with Hinesley. Billy sent V.V. to the master bedroom while he woke his sister, SH., and had her go into the master bedroom with him and V.V. In the morning, Billy contacted his uncle, who was a police officer in Mooresville, Indiana, and the local police were contacted.

Hinesley v. State, No. 55A04-1102-CR-90, slip op. at 1, 2011 WL 5117056 (Ind.Ct. App. Oct. 27, 2011). The State charged Hinesley with two counts of class A felony child molesting and two counts of class C felony child molesting. Prior to trial, the State dismissed one of the eclass C felony counts.

A bench trial was held on December 1, 2010. The State's first witness was Detective Dan Downing of the Morgan County Sheriff's Department, the chief investigating officer in Hinesley's case. During his testimony, Detective Downing summarized unsworn statements that he had taken from V.V. and Billy during interviews on the morning of January 17, 2009. Detective Downing testified that Billy stated that he had left V.V. and Hinesley alone in the living room and later came down the hallway and observed V.V. jump off the couch and pull her pants up from around her ankle area.. Trial Tr. at 17. Detective Downing testified that Billy stated that he spoke with V.V. and asked her if he had seen what he thought he saw and that V.V. had replied "yes." Id. at 18. De- . fense counsel did not object to Detective Downing's , testimony regarding Billy's statement. A video recording of Billy's interview was also entered into evidence without objection. In that recording, Billy stated, "I guess I asked her did he touch you in some spot. She said yes. And she told me that he had entered her." Id. at 21, State's Ex. 2.

Detective Downing then testified regarding V.V.'s interview. Detective Downing described V.V.'s demeanor as tively childlike[,] she was very protected, very guarded. She acted much younger ... than her physical age." Id. at 23. He opined, "she seemed very believable. I didn't see any réason not to believe her statements, especially due to the fact they were corroborated ... by Billy." Id. Detective Downing testified that V.V. stated that she was resting her head in Hinesley's lap when Hinesley left to go into the kitchen to get something. Detective Downing testified that V.V. stated that, when Hines-ley came back, he began rubbing her breast, buttock, and vaginal area. Detective Downing recalled, _

she then stated that he made penetration of her vaginal area. She couldn't tell me how long that went on . or really give me any details about that. At that point in time she stated that Mr. Hinesley told her to pull her pants down, at which point in time he inserted ... his penis into her vagina.

Id. at 25. When asked by the prosecutor, "What caused the intercourse to stop? Did she indicate?" Detective Downing responded, "She said ... that they heard a noise and Mr. Hinesley got up off the top of her. At that point in time she seen Billy in the kitchen." . Id. at 27.

Thereafter, V.V. was called as a witness by the State. She testified that she was resting her head on Hinesley's lap watching a movie when he got up to go to the kitchen. When he returned, he pulled her pajama bottoms and panties down to her ankles. VV. testified that Hinesley climbed on top of her and entered her vagina with his penis. She stated that she was stunned at first and started saying, "I want to go to bed." Id. at 117. VV. stated that she pushed Hinesley off her. V.V. testified that she then saw Billy walking down the hall. Billy asked her if he "had seen what he just seen," and she replied, "yes." Id. at 118. VV. testified that she used slang words to describe the intercourse to Billy by stating that Hines-ley had put his "tweeter" into her "down there." Id. at 120. On eross-examination, V.V. admitted that, in a pretrial deposition, she said that she "forgot" or "wasn't sure" if Hinesley had penetrated her with his penis. Id. at 125, 148-45. VV. testified that she was lying when she gave that deposition testimony.

Next, the State called Billy as a witness. Billy testified that V.V. told him that she had sex with his father but that "[alt this point in time I do not remember what I saw." Id. at 170. The prosecutor reminded Billy about his statement to Detective Downing and asked Billy if he remembered telling Detective Downing that he actually saw V.V. pulling her pants up. Billy indicated that he remembered saying the words "I think I saw" to Detective Downing but claimed to now only recall what V.V. told him had happened and not what he saw. Id. at 174. Defense counsel cross-examined Billy by pointing out that Billy and V.V. were in a sexual relationship at the time of the incident and that Billy repeatedly lied about and denied the relationship during police interviews. Billy admitted that he was afraid of getting caught in his sexual relationship with V.V. because he knew that he could be charged criminally due to her age. Billy stated that he lied to Detective Downing about his relationship with V.V. and that he "could have" lied when he told Detective Downing that he actually saw anything occur between his father and V.V. Id. at 178. Billy agreed that "there's a good chance that [he] didn't see anything at all." Id. Billy elaimed on eross-examination that he learned after his initial interview with Detective Downing that V.V. was pregnant with his baby at the time of the alleged molestation.

At the close of the State's case-in-chicef, defense counsel moved for an involuntary dismissal of counts II and III, one class A felony child molesting count alleging deviate sexual conduct and the class C felony child molesting count alleging touching or fondling with intent to arouse, due to the lack of evidence presented by the State. The trial court granted the motion and dismissed counts II and III, and the trial proceeded as to count I, class A felony child molesting alleging sexual intercourse. : At the conclusion of the trial, the court found Hinesley guilty of one count of class A felony child molesting. The trial court imposed a sentence of thirty years with five years suspended. This Court affirmed Hinesley's conviction on direct appeal. See Hinesley, slip op. at 3. On May 16, 2012, Hinesley filed a petition for post-conviction relief. The post-conviction court held an evidentiary hearing on October 25 and November 16, 2012. Thereafter, on February 12, 20183, the post-conviction court issued its findings of fact, conclusions of law, and judgment denying post-conviction relief. This appeal followed.

Discussion and Decision

Standard of Review

In Wilkes v. State, 984 N.E.2d 1236 (Ind.2013), our supreme court reiterated the appellate standard of review regarding post-conviction proceedings. Specifically, the court stated,

Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Postconviction proceedings do not offer a super appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Those grounds are limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for post-conviction proceedings.
Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment and bears the burden of proof. Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. 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. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law.

Id. at 1240 (citations and quotation marks omitted). We will not reweigh the evidence or judge the eredibility of witnesses, and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Graham v. State, 941 N.E.2d 1091, 1096 (Ind.Ct.App.2011), off 'd on reh'g, 947 N.E.2d 962.

I. Ineffective Assistance of Trial Counsel

Hinesley argues that the post-conviction court erred in finding that he was not denied the effective assistance of trial counsel. We review claims of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bieghler v. State, 690 N.E.2d 188, 192 (Ind.1997), cert. denied (1998). 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, Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052), cert. denied (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To establish 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. Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), cert. denied (1997). When considering a claim of ineffective assistance of counsel, we strongly presume "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, 1073 (Ind.2001). "[Clounsel's performance is presumed effective, and a defendant must offer strong and convine-ing evidence to overcome this presumption." Williams v. State, 771 N.E.2d 70, 73 (Ind.2002).

We must initially acknowledge that the judge who presided over Hinesley's original trial is also the judge who presided over the post-conviction proceedings. This Court has stated that a post-convietion court's findings and judgment should be entitled to "greater than usual deference" when the post-conviction judge is the same judge who conducted the original trial See McCullough v. State, 978 N.E.2d 62, 75 (Ind.Ct.App.2012), trans. denied (2018). Significantly, in such a case, the judge is uniquely situated to assess whether trial counsel's performance fell below an objective standard of reasonableness and whether, but for counsel's unprofessional conduct, there was a reasonable probability that a different verdict would have been reached. Id. (citing State v. Dye, 784 N.E.2d 469, 476 (Ind.2003) (noting that because judge presided both at original trial and post-conviction hearing, judge was in "an exceptional position" to assess weight and credibility of factual evidence and whether defendant was deprived of fair trial)). In addition, as we discuss below within the context of the judicial temperance presumption, we are presented here with a case in which the judge here not only presided both at the original trial and the post-conviction hearing, but was also the trier of fact in the bench trial. That being said, we turn to Hinesley's multiple claims of ineffectiveness.

A. Hearsay Evidence

Hinesley first asserts that his trial counsel rendered ineffective assistance by deliberately failing to object to the State's introduction of inadmissible hearsay evidence. Hearsay is "a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 80l(c). Generally, an out-of-court statement offered to prove the truth of the matter asserted is not admissible unless it falls under a hearsay exception. See Ind. Evidence Rule 802. If a statement involves hearsay within hearsay, also known as multiple hearsay or double hearsay, to be admissible, each part of the combined statements must conform with an exception to the hearsay rule. See Ind. Evidence Rule 805.

Before Billy and V.V. were called as witnesses, and without objection, Detective Downing was permitted to summarize what both Billy and V.V. told him during interviews conducted the morning after the alleged molestation. Detective Downing was also permitted to testify regarding what V.V. had stated to Billy on the night in question, otherwise known as hearsay within hearsay (V.V. to Billy, and Billy to Detective Downing). A video recording of Billy's interview was subséquently admitted into evidence without objection.

At the post-conviction hearing, defense counsel testified that his deliberate decision to not object to Detective Downing's testimony and Billy's recorded interview, which each contained hearsay statements and at least one double hearsay statement, was necessary for his trial strategy. He stated that his defense theory was "that the police investigation was pathetic" and that V.V. "was lying ... and told so many different stories that ... that didn't add up." PCR Tr. at 31. He believed that Billy's and V.V.'s failure to disclose to Detective Downing the fact that they were in a sexual relationship at the time of the alleged molestation was evidence of their motive to fabricate their stories. Defense counsel testified,

[TJhe general tactical decision was made that Billy and V.V. were all over the place and giving so many different stories, that the more stories that were out there, the more different tales that they were telling, I believed that Judge Cra-ney would see that as (inaudible) and [not] find [Hinesley] guilty beyond a reasonable doubt.

Id. at T7.

Hinesley argues that this strategy was unreasonable and that counsel clearly failed to understand the distinction between hearsay evidence received as substantive evidence and non-hearsay evidence of prior inconsistent statements admissible for impeachment purposes. See Gray v. State, 982 N.E.2d 484, 437 (Ind.Ct.App.2013) (noting that Ind. Evidence Rule 613 allows the use of a prior inconsistent statement to impeach a witness, and when used in this manner, the statement is not hearsay). He argues that there was no excuse for allowing the State to introduce inadmissible hearsay statements of a witness as substantive evidence before that witness testified, especially when the statements were admissible for impeachment purposes only. Hinesley argues that by allowing the hearsay to come in as substantive evidence rather than waiting for Billy and V.V. to testify and to impeach them with their prior inconsistent statements, "counsel [caused] irreparable damage to Hinesley's case." Appellant's Reply Br. at 6.

A defendant has the burden to demonstrate to the post-conviction court that his counsel's trial strategy was unreasonable "under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. That the defense strategy was ultimately unsuccessful does not mean that counsel was constitutionally ineffective. Wilkes, 984 N.E.2d at 1245 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Indeed, just because counsel is unable to pursue a reasonable defensive strategy as effectively as he or she wanted to does not mean that the plan was a bad plan. McCullough, 973 NE2d at 76. "Strick land does not guarantee perfect representation, only a reasonably competent attorney." Woodson v. State, 961 N.E.2d 1035, 1041-42 (Ind.Ct.App.2012) (citation and quotation marks omitted), trans. denied. "There is no constitutional requirement that a defense attorney be a flawless strategist or tactician." Id. at 1042.

Régarding defense counsel's chosen strategy, the post-conviction court specifically found:

20. [Defense counsel] specifically and knowingly allowed the pre-trial statements of Billy and V.V. to be presented as substantive evidence, without making objections on any hearsay basis, based on his trial strategy of allowing what he believed to be multiple inconsistent statements to come into evidence;
34. During the PCR hearing, [defense counsel] testified that his theory of trial defense was that V.V. and the Defendant's son, Billy, had fabricated the claims against Hinesley for ulterior reasons and that by allowing all of their pre-trial statements into evidence, he could demonstrate the various inconsistencies in their statements;
35. [Defense counsel] knowingly allowed hearsay evidence into the record as substantive evidence due to his trial strategy.

PCR App. at 147. Thereafter, the post-conviction court concluded that defense counsel's "failure to object to hearsay evidence from the various witnesses during the trial was a trial strategy and was reasonable under the unique cireumstances of this case." Id. at 151.

The State relies on our opinion in Curtis v. State, 905 N.E.2d 410 (Ind.Ct.App.2009), trans. denied, to support the post-convietion court's conclusion that permitting the hearsay to be introduced constituted reasonable trial strategy. In Curtis, defense counsel stipulated to the admission of various pretrial hearsay statements made by children regarding alleged sexual abuse according to the strategy that "the inconsistencies among the statements might work to [the defendant's] advantage." Id. at 415. Indeed, counsel in Curtis knew "the [hearsay] evidence would be introduced in one form or another" so he made the deliberate strategic choice to try to use the evidence to the defendant's advantage. Id. On appeal from the denial of post-conviction relief, we concluded that the post-conviction court properly refused to second-guess counsel's strategy. Id. We specifically noted that, while the defendant claimed that his convictions on four counts of child molesting and three counts of battery demonstrated the failure of his counsel's strategy, the defendant was acquitted on two counts of vicarious sexual gratification. Accordingly, we concluded that although the record was unclear, "the strategy employed by [defense] counsel may have been a factor in those acequittals." Id.

While Curtis is not precisely on point factually, its reasoning regarding the deliberate trial strategy chosen by defense counsel here is instructive. Hinesley concedes that the hearsay evidence was admissible for impeachment purposes, and therefore the evidence was going to be admitted in one form or another. As defense counsel explained during the post-conviction hearing, he hoped that allowing all of the statements into evidence and demonstrating the inconsistencies among the multiple statements would work to Hinesley's advantage to show V.V.'s and Billy's motive to fabricate and to create reasonable doubt. While counsel's manner of execution may not have been perfect or even preferred, it appears that his performance was consistently aimed at executing this chosen defense strategy. To the extent that Hinesley claims that his conviction demonstrates the failure of his counsel's strategy, we note that the trial court dismissed two child molesting counts at the close of the State's case-in-chief due to lack of evidence. As in Curtis, although the record is unclear, the strategy employed by counsel may have been a factor in those dismissals. We cannot say that the post-conviction court erred when it concluded that defense counsel's trial strategy was reasonable under the unique circumstances of this case.

B. Vouching Testimony

Hinesley next claims that he was denied the effective assistance of counsel due to his counsel's failure to object and/or move to redact two instances of improper vouching testimony. Regarding V.V., Detective Downing testified: "But she seemed very believable. I didn't see any reason not to believe her statements, especially due to the fact they were corroborated [by] Billy." Tr. at 23. Similarly, in his recorded statement which was admitted into evidence, Billy stated to Detective Downing that "I don't believe V.V. made this up." Id. at 21, State's Ex. 2.

Vouching testimony is generally prohibited under Indiana Evidence Rule 704(b), which states: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." Such testimony invades the province of the jury because it is essential that the trier of fact determine the credibility of the witnesses and the weight of the evidence. Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind.Ct.App.2012).

The State maintains that, even assuming that these two statements did constitute improper vouching testimony to which a proper objection would have been sustained, counsel's failure to object to the statements was again consistent with his trial strategy. During the post-conviction proceedings, defense counsel testified that although he did not specifically recall his justification for not objecting to Detective Downing's alleged vouching testimony, he believed that his decision may have been premised on his general trial strategy of trying to expose the "totality of Detective Downing's pathetic investigation" and how Detective Downing seemed to just accept V.V. and Billy's account of things but "did not know many of the facts" that he needed to know. PCR Tr. at 49. As for Billy's alleged vouching statement, counsel stated that he did not object because he knew that Billy's forthcoming trial testimony was going to be "quite to the contrary," and thus this was again supportive of his general strategy of pointing out the numerous variations in V.V.'s and Billy's stories. Id. at 50.

While trial counsel could not specifically explain his reasons for failing to object, we observe that courts should not insist that attorneys "'confirm every aspect of the strategic basis for his or her actions.'" Woodson, 961 N.E.2d at 1041 (quoting Harrington v. Richter, — U.S. —, 181 S.Ct. 770, 790, 178 L.Ed.2d 624 (2011)). In light of defense counsel's overall trial strategy, counsel's failure to object to the two alleged vouching statements did not constitute deficient performance and was not unreasonable under the cireum-stances. Moreover, the concern with improper vouching testimony is that the jury may be influenced in a manner inconsistent with the defendant's right to a fair trial. This particular concern is not present here because, as we discuss more fully below, this was a bench trial. Finally, the record reveals that the two statements were isolated and not pervaéive and did not affect the outcome of the trial,. We are unpersuaded that but for counsel's failure to object to the alleged improper ivouching statements, there is a reasonable probability that the verdict would have been different. i

'C. Uncharged Misconduct

Hinesley makes a brief argument regarding defense counsel's failure to move to redact from Billy's recorded statement some "irrelevant" references as well as Billy's reference to a conversation with his sister, S.H., in which he stated that S.H. complained to him about unwanted physical attention from Hinesley. Hines-ley asserts that Billy's reference to his conversation with SH. "implies" uncharged misconduct in violation of Indiana Evidence Rule 404(b). Appellant's Br. at 26. Evidence which creates a mere inference of prior misconduct is not prohibited by Evidence Rule 404(b). Dixson v. State, 865 N.E.2d 704, 712 (Ind.Ct.App.2007), trans. demied. Additionally, when looking at the evidence presented as a whole, we observe that the reference was inconsequential, and Hinesley has failed to show that he suffered prejudice as a result.

D. Medical Report

Hinesley next asserts that his counsel was ineffective for failing to obtain and introduce the medical report from a physical examination of V.V. conducted the day after the molestation, which indicated that V.V. did not suffer injury to her vagina and that her hymen remained intact. Hinesley concedes that although introduction of the report would not have negated the molestation allegation, the report would have "strengthened" his case. Appellant's Br. at 31. Hinesley argues that "it would have been helpful to his defense to show that not only had [V.V.'s] hymen survived her claimed penetration" but there was no sign of any "abrupt" or "foreible" penetration. Appellant's Reply Br. at 14.

During post-conviction proceedings, defense counsel stated that he could not recall if the medical report was in his file and could not explain his failure to both seek and introduce the report. Regardless, we cannot say that the medical report has the same exculpatory value that Hinesley now assigns it such that the result of the trial would have been different had counsel introduced it. Part of the defense theory revolved around Billy and V.V.'s hidden sexual relationship and V.V.'s pregnancy with Billy's baby at the time of the alleged molestation. In light of the fact that V.V. was both sexually active and pregnant at the time of the alleged molestation, a report stating that V.V.'s hymen was still intact becomes far less significant, as the report neither supports nor negates sexual contact with Hinesley, and could tend to undermine the extent of the sexual relationship between V.V. and Billy.

While Hinesley belabors the importance of the lack of evidence of physical trauma to V.V.'s vagina reported by the examiner, we observe that V.V.'s trial testimony did not recount a violent or abrupt sexual encounter. Moreover, the parties had already stipulated that DNA tests, conducted at the same time as the physical examination, showed no evidence of sexual contact between Hinesley and V.V. Tr. at 7. We agree with the State that the DNA evidence is 'by far the more compelling exculpatory evidence and is also evidence not inconsistent with the defense strategy. We cannot say that failure to introduce the medical report constituted ineffective assistance of counsel. See, eg., Kubsch v. State, 934 N.E.2d 1138, 1142 (Ind.2010) (refusing to find ineffective assistance in failing to introduce allegedly exculpatory evidence when that evidence did not support the defense theory and it was impossible to conclude that the evidence had exculpatory value). Significantly, Hinesley submitted the medical report at the post-conviction hearing, and the court determined that even had counsel introduced the report at trial, the outcome would not have changed. Hinesley has not met his burden on this issue.

E. Cumulative Impact & Judicial Temperance

Hinesley maintains that the record reveals that, due to defense counsel's unreasonable trial strategy and multiple errors, his conviction was improperly based on evidence that should have been excluded or, at the very least, disregarded. He contends that it was the cumulative impact of his counsel's poor decisions that rendered the representation ineffective and caused him prejudice. A court making the prejudice inquiry must ask if the defendant has met his burden of showing that the decision reached would reasonably likely have been different absent the errors. Potter v. State, 684 N.E.2d 1127, 1135 (Ind.1997) (citing Strickland, 466 U.S. at 696, 104 S.Ct. 2052). Hinesley cannot demonstrate that he suffered such prejudice.

In considering whether Hines-ley suffered prejudice, we look here to the application of the judicial-temperance presumption. Hinesley's trial was a bench trial and not a jury trial. We generally presume that in a proceeding tried to the bench, a court renders its decisions solely on the basis of relevant and probative evidence. Konopasek v. State, 946 N.E.2d 23, 28 (Ind.2011). This longstanding principle has been termed the judicial-temperance presumption. Id. We presume that the trial judge is aware of and knows the law and considers only evidence properly before him or her in reaching a decision. Conley v. State, 972 N.E.2d 864, 878 (Ind.2012). The risk of prejudice is quelled when the evidence is solely before the trial court. Id.

Although the post-conviction court acknowledged that defense counsel allowed hearsay evidence to be presented by the State as substantive evidence without objection, the post-conviction court did not indicate that, as the trial judge, she relied on that evidence. To the contrary, Judge Craney specifically concluded that, "regardless of any hearsay admitted without objection," she "found V.V. to be a eredible witness and believed her testimony." Appellant's App. at 163. Judge Craney's conclusion that she did not rely on inadmissible evidence is further supported by the fact that she dismissed two of the child molesting counts, specifically count II regarding deviate sexual conduct and count III, touching or fondling with intent to arouse, as the only evidence of those counts came in through Detective Downing's testimony as opposed to V.V.'s direct testimony. Regarding Judge Craney's alleged reliance on vouching or uncharged misconduct evidence due to defense counsel's trial strategy, while she did not affirmatively state in her findings that she did not improperly rely on that evidence in reaching her verdict, Hinesley has given us no cause to presume that she did not. Under the circumstances, Hinesley has failed to rebut the judicial-temperance presumption.

In sum, Hinesley has failed to demonstrate a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. As stated earlier, Judge Craney was not only the trier of fact and the trial judge, but she was also the post-conviction judge. We cannot imagine a post-conviction jurist in a better position to assess Hinesley's current claims of ineffective assistance of counsel. Judge Craney has made such an assessment, and her findings and judgment are entitled to greater than usual deference by this Court. See McCullough, 973 N.E.2d at 75. Hinesley has not met his burden to show that the evidence, as a whole, unmistakably and unerringly points to a contrary conclusion. Based upon the foregoing, we conclude that the post-conviction court did not err when it concluded that Hinesley was not denied the effective assistance of trial counsel.

II. Prosecutorial Misconduct

Finally, in addition to claiming that his counsel was ineffective for failing to object to the introduction of alleged inadmissible evidence, Hinesley asserts that the prosecutor committed misconduct by knowingly introducing and/or eliciting that evidence. Because this issue was known and available on direct appeal but not raised, Hinesley's claim is not available as a freestanding claim of fundamental error on petition for post-conviction relief. Freestanding claims of fundamental error are not available in post-conviction proceedings. Sanders v. State, 765 N.E.2d 591, 591 (Ind.2002); Graham v. State, 941 N.E.2d 1091, 1097 (Ind.Ct.App.2011) aff'd on reh'g, 947 N.E.2d 962. The judgment of the post-conviction court is affirmed.

Affirmed.

BARNES, J., and PYLE, J., concur.

      . We held oral argument on November 19, 2013, in Indianapolis. We thank counsel for their preparation and presentations, and we commend them on their outstanding advocacy.

      . The record indicates that, at the time of trial, V.V. had given birth to the baby and Billy was serving a work-release prison sentence in Johnson County for class C felony child molesting due to his relationship with V.V. Trial Tr. at 160-63, 183.

      . While we need not reach a conclusion as to whether a proper objection to the alleged vouching statements would have been sustained, we note that Hinesley's trial occurred in 2010, prior to our supreme court's opinion in Hoglund v. State, 962 N.E.2d 1230 (Ind.2012). Before Hoglund, courts allowed "some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters." Lawrence v. State, 464 N.E.2d 923, 925 (Ind.1984). Applying the Lawrence rule, however, was not simple, as " 'the line between the impermissible vouching for the victim's credibility on the one hand and rendering permissible opinions with regard to a proclivity to not exaggerate or fantasize, on the other hand, is an extremely fine one.'" Hoglund, 962 N.E.2d at 1233 (quoting Hook v. State, 705 N.E.2d 219, 223 n. 4 (Ind.Ct.App.1999), trans. denied ). Hoglund eliminated this "vouching testimony exception in the context of child-molesting cases." Palilonis v. State, 970 N.E.2d 713, 729 (Ind.Ct.App.2012), trans. denied.

      . We note that, in his appellant's brief, Hines-ley alleges numerous other isolated deficiencies in counsel's performance that we conclude do not amount to ineffective assistance but choose not to specifically address herein. (For example, he concedes that counsel effectively cross-examined V.V. in some respects, but argues that counsel could have done better.) See Martin v. State, 760 N.E.2d 597, 601 n. 3 (Ind.2002). As our supreme court has stated, "[a) multitude of marginal issues may hide those with merit. To quote Justice Jackson: 'Legal contentions, like currency, depreciate through over-issue.'" Id. (quoting Justice Robert H. Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951)).

      . Our supreme court has noted that the judicial-temperance presumption, although broad, is not without limits. Konopasek, 946 N.E.2d at 28. In cases where a defendant has made a specific objection to evidence that is overruled, it becomes "a curious ratiocinative process which presumes that the trial court will disregard that which it holds admissible over specific objection." Id. (citing Fletcher v. State, 264 Ind. 132, 137, 340 N.E.2d 771, 774-75 (1976)). Therefore, one way that a defendant can overcome the presumption is by showing that the trial court admitted evidence over a specific objection. Id. at 29.

      . Hinesley concedes that freestanding claims of fundamental error are unavailable on post-conviction relief, but invites us to address the following question: When a post-conviction petitioner was represented by the same lawyer on direct appeal as at trial, and where that lawyer could not assert his own ineffectiveness at trial or assert fundamental error because of counsel's failure to object to prose-cutorial misconduct, may a postconviction petitioner raise prosecutorial misconduct as a freestanding issue? Hinesley urges us to recognize a limited exception to our supreme court's established holding that freestanding fundamental error claims are not available to a post-conviction petitioner. He directs us to our supreme court's opinion in Askew v. State, 500 N.E.2d 1219 (Ind.1986), in which the court acknowledged that because the same counsel represented the appellant at trial and on appeal, it is unreasonable to believe that counsel would have raised the question of his own competency on appeal, Id. at 1220. Hinesley argues that the precedent precluding arguing fundamental error in post-conviction proceedings is premised upon the assumption that the petitioner had one fair opportunity to raise an issue on direct appeal and that, because Hinesley's trial and appellate counsel were the same, Hinesley did not have that opportunity regarding prosecutorial misconduct because it was intertwined with ineffectiveness of counsel. While Hinesley points out an interesting quandary, absent specific direction from our supreme court, we decline his invitation to recognize an exception to the established precedent.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    Stephen BRAKIE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 65A05-1304-CR-172.
    Court of Appeals of Indiana.
    Dec. 20, 2013.

      John Jacob Warrum, Mt. Vernon, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Stephen Brakie appeals his conviction for child molesting as a class A felony, raising three issues which we consolidate and restate as:

I. Whether the trial court abused its discretion by rejecting Brakie's proposed instruction regarding the presumption of innocence; and
II. Whether the evidence is sufficient to sustain his conviction for child molesting as a class A felony.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 2011, James Johnson, Jr., and Laura Martin were engaged to be married and lived with Johnson's three daughters including four-year-old N.J., who was born on November 29, 2006. . At some point, Johnson told Martin that the last time Brakie, a friend of the family, was at their house something had come up missing, and he believed Brakie "maybe ... took it," and Martin should watch Brakle Transcript at 141.

On October 30, 2011, Brakie went over to Johnson's house at around 5:30 p.m. Martin was looking through boxes in the bedroom she shares with Johnson, and Johnson was cleaning out the van outside by the side of the house. NJ. was with Brakie, and Johnson's two other daughters were outside playing on the swing set in the back yard. At some point, Brakie asked Martin if he could have their puppy, and Martin said that he would have to ask Johnson.

At some point, Brakie went into Martin's bedroom, and Martin told him that he should "go out there with James" because she was busy. Id. Brakie picked up N.J., put her over his shoulder, and said, "Let's go outside and play. . .." Id. at 142.

Instead of going outside with N.J.'s other sisters, Brakie and N.J. went to the back room, and Brakie pushed N.J. down | and removed her tights. Brakie put a serewdriver in her "privacy". or erotch area of her body and this hurt N.J. "[al lot." Id. at 207. N.J. was seared, and Brakie told her that if she told anybody that he would give her a "butt whipping." Id. at ° 208. Brakie was with N.J. for between five and twenty-five minutes.

Martin continued unpacking the boxes and cleaning until Johnson's two other daughters came to her and said that N.J.'s "privacy was bleeding." Id. at 142. Martin examined N.J.'s private area and discovered that N.J.'s "privacy's [sic] was really bloody, there was quite a lot of blood ... and ... the hole of her privacy was abnormally large Id. at 148. There was blood "all over her vagina" and "coming down her legs." Id. at 178. Martin thought that it looked like "something had penetrated into her vagina." Id. at 143. N.J. said that it hurt "really bad." Id.

Meanwhile, Johnson, who was still cleaning out his van, saw Brakie leave and walk back down an alley. Martin came outside and was "kind of hysterical" and told Johnson that he needed to come inside and check on N.J. Id. at 172. When Martin first asked N.J. what happened, N.J. stated that she fell on a tool. Martin said, "Did something else happen to you ... [ylou can tell me the truth, you don't have to be seared," and N.J., who seemed rather nervous, said "Yeah" and told Martin that Brakie hurt her. Id. at 144. Martin and Johnson then asked N.J. what had happened, and N.J. said that Brakie "had stuck something up her privacy," which she sometime later described as a green screwdriver, which was a serewdriver of a color that Johnson had at one time, and N.J. indicated that Brakie had taken the green serewdriver with him when he left. Id. at 148. N.J..also stated that Brakie had inserted a grinder handle and a nail into her, and that Brakie had said if she told on him he would "whoop her butt." Id. at 148. Martin then called the police.

Sometime that evening, Kathalene Keller, a sexual assault nurse examiner and an emergency room nurse, examined N.J. and observed that she had no bruising or trauma to her external genitalia but had a very large tear that was still actively bleeding to the posterior fourchette which "almost extend[ed] into her rectum" and an abrasion next to her hymen. Id. at 284. Keller also observed a lot of redness on N.J.'s internal genitalia N.J. was "very adamant" that the examination was "very painful" and was "very tearful throughout the entire examination," so that Keller had to take a lot of breaks. Id. at 286-287. Keller did not ask N.J. any specific questions, but N.J. told Keller that Brakie used a screwdriver.

On November 1, 2011, Jenny Wood, a child forensic interviewer and an employee of Holly's House, a child and adult advocacy center located in Evansville, interviewed N.J. N.J. initially told Wood that she fell, that Brakie pushed her, she fell to the ground and was hurt, and that Brakie pulled down her tights. She told Wood that Brakie "made her privacy bleed ... by tools." Id. at 219. Wood showed N.J. an anatomically correct drawing of a girl and asked her where she was hurt, and N.J. circled the vagina area. N.J. described a green serewdriver and a tool "that was gray with pink on it" and brown. Id. at 237. N.J. also mentioned that Brak-ie inserted a lot of things into her.

On December 2, 2011, the State filed an amended information charging Brakie with child molesting as a class A felony. At trial, N.J. testified that Brakie put a screwdriver in her "privacy," which she indicated was the crotch area of her body, and that it hurt a lot. Id. at 207. When asked how an injury such as N.J.'s would occur, Keller answered that "to cause a tear to the posterior fourchette there would have to [be] pressure or blunt force trauma applied to the internal genitalia, the female sex organ." Id. at 282. Keller also testified that N.J.'s injuries were not consistent with a straddle fall, explaining that:

If [N.J.] would have had a straddle fall, or fell on anything, the whole purpose of the labia majora on a female is actually to protect the internal sex organ. If she would have fell onto something, she would have. had trauma to the inner thigh, and she also would have had trauma noted to the labia majora, and she had none of that.

Id. at 285. Keller also testified that N.J.'s injuries were consistent with a tool being used and with someone trying to push an object into her vagina, and that "That would be the only way that you could actually get tearing to the posterior four-chette is when an object is attempted to placed [sic] into the hymen, which is actually the entrance to the vaginal canal." Id. at 286.

On December 12, 2012, Brakie tendered a final instruction regarding the presumption of innocence. The court refused to give the instruction and stated:

[Defense counsel] offered one (1) proposed final instruction, the Court asked for authority as to whether that was an approved instruction.
[Defense counsel] attempted to find such authority, but was, has not been able to do so. The Court is going to refuse the instruction as not being supported with authority, and the Court finds it's also not a correct statement of the law.

Id. at 359. Defense counsel argued that the proposed instruction had been used in multiple courts and was appropriate to give in this case. The court responded by stating:

I believe that every[ Jone of the points included in the instruction you proposed are included in the Court's definitions and there are two (2) definitions from the Court on reasonable doubt. Court's number 11 and Court's number 12, and so I think that Mr. Brakie's position is well covered by the Court's instructions.

Id. at 8361.

The jury found Brakie guilty as charged. The court sentenced Brakie to serve thirty years in the Department of Correction.

DISCUSSION

L.

The first issue is whether the trial court abused its discretion by rejecting Brakie's proposed instruction regarding the presumption of innocence. 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.2008), cert. denied, 540 U.S. 1150, 124 S.Ct. 1145, 157 L.Ed.2d 1044 (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. When reviewing the refusal to give a proposed instruction, this court considers: (1) whether the proposed instruction correctly states the law; (2) whether the evidence supports giving the instruction; and (8) whether other instructions already given cover the substance of the proposed instruction. Driver v. State, 760 N.E.2d 611, 612 (Ind.2002). Generally, 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, 148 L.Ed.2d 45 (2000).

An error is to be disregarded as harmless unless it affects the substantial rights of a party. Oatts v. State, 899 N.E.2d 714, 727 (Ind.Ct.App.2009); Ind. Trial Rule 61. "Errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise." Dill v. State, 741 N.E.2d 1230, 1233 (Ind.2001).

Brakie tendered the following jury instruction:

If the evidence in this case susceptible [sic] to two different interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under law, to adopt that interpretation which will establish the defendant's innocence, and reject that which points to his guilt.
You will notice, however, that this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If, on the other hand, . one of the possible conclusions should appear to you to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction points to the defendant's guilt, the entire proof must carry the convincing force required by law to support a verdict of guilty.

Appellant's Appendix at 21.

Brakie cites Robey v. State, 454 N.E.2d 1221 (Ind.1988); Lee v. State, 964 N.E.2d 859 (Ind.Ct.App.2012), trans. denied; and Matheny v. State, 983 N.E.2d 672 (Ind.Ct.App.2013), clarified on reh'g, 987 N.E.2d 1169, trans. denied, for the proposition that the trial court abused its discretion in refusing his tendered instruction.

At trial, the court issued certain relevant instructions, instructing the jury as part of the preliminary instructions and the final instructions that "[uJnder the law of this State a person charged with a crime is presumed to be innocent" and that "[yJou should attempt to fit the evidence to the presumption that Stephen J. Brakie is innocent. ..." Transcript at 101. The court also informed the jury of the State's burden as follows:

To overcome the presumption of innocence the State must have proved Stephen J. Brakie guilty of each element of the crime charged, beyond a reasonable doubt. Mr. Brakie is not required to present any evidence to prove or explain anything.... The burden is upon the State to prove beyond a reasonable doubt that Stephen J. Brakie is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning Mr. Brakie's guilt. But it does not mean that Mr. Brakie's guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual, and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exist [sic] when you are not firmly convinced of Mr. Brakie's guilt, after you have weighted [sic]} and considered all of the evidence. Mr. Brakie must not be convicted on suspicion or speculation. It is not enough for the State to show that Mr. Brakie is probably guilty. On the other hand there are very few things in this world that we know with absolute certainty. The State must prove each element of the crime by evidence that convinces each of you, and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find that there is a reasonable doubt that Stephen J. Brakie is guilty of the erime, you must give Mr. Brakie the benefit of that doubt, and find Mr. Brakie not guilty of the crime under consideration. A reasonable doubt is a fair, actual, and logical doubt, that arises in your mind after an impartial consideration of all of the evidence and cireumstances in the case. It should be a doubt based upon reason and common sense. And not a doubt based upon imagination, or speculation. To prove Stephen J. Brakie's guilt of the elements of the crime charged, beyond a reasonable doubt the evidence must be such that it would convinee you of the truth of it. To such a degree of certainty that you would feel safe to act upon such conviction without hesitation in a matter of the highest concern and importance to you.

Id. at 426-427.

In Robey, the defendant tendered a jury instruction stating:

The law presumes the defendant to be innocent of the crime charged, and this presumption continues in his favor throughout the trial of this cause. It is your duty, if it can be reasonably and conscientiously done to reconcile the evidence upon the theory that the defendant is innocent, and you cannot find the defendant guilty of the crime charged in the information unless the evidence satisfies you beyond a reasonable doubt of his guilt.

454 N.E.2d at 1222. The Court held that when such an instruction, "which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant's innocence if they could do so, must be given if requested." Id. (citing Farley v. State, 127 Ind. 419, 26 N.E. 898 (1891); Simmons v. State, 179 Ind.App. 342, 385 N.E.2d 225 (1979).

In Farley, upon which Robey principally relies, the Indiana Supreme Court noted that although the trial court "gave general instructions to the effect that the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt," the instructions did not address "the principle" put forward by the defendant's tendered instruction, namely, "that the presumption of innocence prevails throughout the trial, and that it was the duty of the jury to reconcile the evidence upon the theory of the defendant's innocence, if they could do so." 127 Ind. at 420-421, 26 N.E. at 899.

We observe that unlike the instruction tendered by the defendant in Robey, the instruction tendered by Brakie did not include the advisement that the presumption of innocence prevails until the close of the trial. Moreover, Brakie's counsel did not object to the instructions for the failure to include such an advisement. Thus, we focus on whether the trial court properly instructed the jury of the duty to reconcile the evidence upon the theory of the defendant's innocence if they could do so, which is the essence of Brakie's tendered instruction. See Scisney v. State, 701 N.E.2d 847, 849 (Ind.1998) ("We hold that appellate review of a claim of error in the giving of a jury instruction requires a timely trial objection clearly identifying both the claimed objectionable matter and the grounds for the objection, but that the tender of a proposed alternative instruction is not necessarily required to preserve the claim of error.").

We find Simpson v. State, 915 N.E.2d 511 (Ind.Ct.App.2009), trans. denied. instructive. In Simpson, the defendant tendered a similar final instruction to the one requested by Brakie, specifically the following:

You should attempt to fit the evidence to the presumption that the Aceused is innocent.
If the evidence in this case is susceptible of two (2) constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the accused, and the other to his innocence, it is your duty, under the law, to adopt the interpretation which is consistent with the Accused's innocence, and reject that which points to his guilt.

915 N.E.2d at 518. The trial court refused the instruction and instructed the jury as follows:

You are the exclusive judges of the evidence, the credibility of the witnesses, and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe; the manner and conduct of the witness while testify, ing; any interest, bias, or prejudice the witness may have; any relationship with other witnesses or interested parties; and the reasonableness of the testimony of the witness considered in the light of all of the evidence in the case.
You should attempt to fit the evidence to the presumption that the defendant is innocent and the theory that every witness is telling the truth. You should not disregard the testimony of any witness without a reason and without careful consideration. If you find conflicting testimony, you must determine which of the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you should use your own knowledge, experience, and common sense gained from day-to-day living. The number of witnesses who testify to a particular fact or the quantity of evidence on a particular point need not control your determination of the truth. You should give the greatest weight to that evidence which convinces you most strongly of its truthfulness.

Id. at 518-519. On appeal, the defendant argued that while the court's instruction informed the jury to fit the evidence to the presumption of innocence, none of the court's instructions or combination of instructions informed the jury of their duty when the case is susceptible of two constructions or interpretations. Id. at 519. This court agreed with the State that the holding in Robey simply required an instruction that the jury should fit the evidence to the presumption that a defendant is innocent and concluded that the trial court did not abuse its discretion in refusing the defendant's instruction. Id. at 520.

Here, we find that the court's instructions adequately instructed the jury on the presumption of innocence. Specifically, the court instructed the jury that under the law of this State a person charged with a crime is presumed to be innocent and that "[ylow should attempt to fit the evidence to the presumption that Stephen J. Brakie is innocent...." Transcript at 101, 426. This instruction satisfied the Indiana Supreme Court's holding in Robey that the jury should fit the evidence to the presumption that a defendant is innocent. See Smith v. State, 981 N.E.2d 1262, 1269 (Ind.Ct.App.2013) (holding that an instruction that the jury "should attempt to fit the evidence to the presumption that the Defendant is innocent" satisfied the holding in Robey and concluding that the trial court did not abuse its discretion in refusing to use the defendant's tendered instruction because the substance of that instruction was covered by instructions given by the court), trans. denied; Simpson, 915 N.E.2d at 520; Watson v. State, 512 N.E.2d 885, 888 (Ind.Ct.App.1987) (holding that the court did not err in refusing to give the defendant's tendered instruction which was based upon Farley because "the substance of the refused instruction was adequately covered"). We cannot say that the trial court abused its discretion in declining to give Brakie's tendered instruction or that reversal is warranted on this basis.

To the extent that Brakie cites Mathe-ny, we do not find that reversal is required. Brakie appears to argue that the instruction in Matheny was incomplete as opposed to his complete instruction. The court in Matheny found that the defendant's tendered instruction was incomplete based upon Simpson. 988 N.E.2d at 680. However, as pointed out in Matheny, incompleteness was one of two reasons that the Simpson court affirmed the trial court's refusal of the tendered instruction. Matheny, 983 N.E.2d at 680 n. 6. The Simpson court explained:

The State contends that Simpson's tendered instruction was "incomplete because it failed to inform the jury that they could in fact conclude that one of the two opposing conclusions was unreasonable." Appellee's Br. at 11. The State further contends that "[oJjur Supreme Court's holding in Robey simply required an instruction that the jury should fit the evidence to the presumption that a defendant is innocent" and that the trial court's instruction "informed the jury as required by Robey." Id. We agree with the State and therefore conclude that the trial court did not abuse its discretion in refusing Simpson's instruction. Consequently, we affirm Simpson's convictions.

Simpson, 915 N.E.2d at 520. We cannot say that the fact that Brakie's tendered instruction was more complete than the instruction tendered by the defendant in Simpson requires reversal because we conclude that the trial court's instructions informed the jury of the duty to reconcile the evidence upon the theory of the defendant's innocence if they could do so, which was one of the court's bases for affirming in Simpson. We also observe that the instruction in Matheny indicated that the presumption of innocence continues in favor of the accused throughout the trial, 983 N.E.2d at 678, and, as clarified by the court on rehearing, the instructions that the trial court gave the jury did not adequately convey the substance of Matheny's tendered instructions. 987 N.E.2d at 1172. Unlike Matheny, the instruction tendered by Brakie did not include the advisement that the presumption of innocence prevails until the close of the trial, and, moreover, Brakie's counsel did not object to the instructions for the failure to include such an advisement.

With respect to Brakie's reliance on Lee v. State, 964 N.E.2d 859 (Ind.Ct.App.2012), trans. denied, we find Lee distinguishable. In Lee, the defendant's tendered instruction was more extensive and included the idea that the presumption continues in favor of the accused throughout the trial. 964 N.E.2d at 863. Further, the trial court in Lee did not inform the jury that it "should attempt to fit the evidence to the presumption" that the defendant was innocent as the trial court did in this case. Transeript at 101. Thus, we cannot say as we did in Lee that the trial court's instructions "do not satisfy Robey 's dictate that a jury be specifically instructed, if requested by a defendant, 'that the jury should fit the evidence to the presumption that a defendant is innocent. ...'" 964 N.E.2d at 865 (quoting Simpson, 915 N.E.2d at 520).

IL.

The next issue is whether the evidence is sufficient to sustain Brakie's conviction for child molesting as a class A felony. When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 788 N.E.2d 1132, 1189 (Ind.2008). We look only to the probative evidence supporting the verdict and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. Ind.Code § 35-42-4-3 provides in part: "[al 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" and that "[hlowever, the offense is a Class A felony if ... it results in serious bodily injury...."

Brakie argues that the evidence is insufficient to support his conviction because "all of the testimony regarding any of the elements of 1.C. 35-42-4-8 or of the alleged incident is based upon the testimony and statement -of the alleged victim, a four (4) year old child." Appellant's Brief at 6. Brakie contends that N.J. told at least three (8) different stories during the course of the investigation and trial and that the incredible dubiosity rule should apply.

The State argues that the incredible du-biosity rule does not apply, that the rule is limited to cases where a sole witness presents inherently contradictory testimony, and that N.J.'s trial testimony was not inherently contradictory, equivocal, or unworthy of credit. The State also contends that N.J.'s trial testimony is not incredibly dubious merely because she made inconsistent pretrial statements and that it was for the jury to resolve any conflicting evidence.

To the extent Brakie asserts that the incredible dubiosity rule requires reversal of his conviction, we note that the rule applies only in very narrow cireum-stances. See Love v. State, 761 N.E.2d 806, 810 (Ind.2002). The rule is expressed as follows:

If a sole witness presents inherently improbable testimony and there is a complete lack of cireumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.

Id.

Brakie points to the testimony of Martin, Johnson, N.J., and Wood for the idea that N.J. told at least three different stories. On the pages cited by Brakie referring to N.J.'s testimony, N.J. testified that Brakie hurt her in the back room by putting a screwdriver in her vagina and that she told her mother that she fell down. On redirect examination, N.J. indicated that Brakie pushed her down, pulled down her tights, and stuck something into her vagina which hurt. N.J. also testified that she was scared to tell her mother that Brakie pushed her down and tried to stick something in her, and she testified on direct examination that Brakie had told her that 'if she told anyone he would give her a "butt whipping." Transeript at 208.

Brakie fails to show that the testimony of N.J. was inherently contradictory. To the extent her testimony conflicted with the testimony of Martin, Johnson, or Wood, or considering Brakie's argument that N.J.'s testimony was less believable, we note that this is an issue of witness credibility. The function of weighing witness credibility lies with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138, 1141 (Ind.Ct.App.1995). We cannot reweigh the evidence and judge the credibility of the witnesses. See Jones, 783 N.E.2d at 1139. Further, we cannot say that N.J.'s testimony that Brakie pushed her down, removed her tights, and stuck a screwdriver into her vagina was so inherently improbable that no reasonable person could believe it. Brakie does not show how the testimony against him was somehow internally inconsistent and has not shown N.J.'s testimony to be incredibly dubious. We also note that Keller, the sexual assault nurse examiner, examined N.J. and observed that she had no bruising to her external genitalia, but had a very large tear that was still actively bleeding which almost extended to her rectum, and that N.J.'s injuries were not consistent with a straddle fall but instead were consistent with a tool being used and with someone trying to push an object into her vagina.

Based upon our review of the evidence and testimony most favorable to the conviction as set forth in the record and above, we conclude that sufficient evidence exists from which the trier of fact could find Brakie guilty beyond a reasonable doubt of child molesting as a class A felony. See Hampton v. State, 921 N.E.2d 27, 29 (Ind.Ct.App.2010) (finding that the testimony of the seven-year-old victim was not incredibly dubious and concluding that based upon the record the State presented evidence of probative value from which a reasonable jury could have found the defendant guilty of child molesting as a class A felony), reh'g denied, trans. denied; Surber v. State, 884 N.E.2d 856, 869 (Ind.Ct.App.2008) (holding that the testimony of a six-year-old victim was not incredibly dubious despite some inconsistencies, and that such inconsistencies were appropriate to the cireumstances presented, the age of the witness, and the passage of time between the incident and the time of her statements and testimony), trams. denied.

For the foregoing reasons, we affirm Brakie's conviction for child molesting as a class A felony.

Affirmed.

ROBB, C.J., and BARNES, J., concur.

      . During cross-examination of Martin, the following exchange occurred:
      [Defense Counsell: And I believe you referred to it as her hole.
      Laura Martin: Her privacy, hole, yes, the vagina entry where you usually have sexual relations, yes.
      Transcript at 153.

      . Johnson testified that he did not have a grinder but had a grinder handle.

      . The trial court referred to these instructions as "Court's number 11 and Court's number 12." Transcript at 361. The record does not contain a copy of the individual instructions but contains a recitation of the instructions to the jury in the transcript which does not include a delineation of separate instructions.


author: BARNES, Judge.

text:
    Ronald GAINES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1303-CR-123.
    Court of Appeals of Indiana.
    Dec. 20, 2013.

      Suzy St. John, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Ronald Gaines appeals his conviction for Class A misdemeanor invasion of privacy. We affirm.

Issues

Gaines raises three issues, which we consolidate and restate as:

I. whether there was a fatal variance between the charging information and the proof at trial; and
II. whether the trial court properly admitted the State's Exhibits.

Facts

On May 15, 2012, the trial court granted S.G. an ex parte protective order against Gaines under Indiana Code Chapter 34-26-5. The trial court scheduled a hearing for June 11, 2012. Deputy Brandy Bouma of the Marion County Sheriff's Department served the protective order on Gaines on May 17, 2012.

On June 7, 2012, Officer Edward Fiscus of the Indianapolis Metropolitan Police Department was dispatched to S.G.'s residence regarding a violation of a protective order. When Officer Fiseus arrived, Gaines was in front of the residence, and the garage door was open. Officer Fiseus arrested Gaines, and the State charged him with Class A misdemeanor invasion of privacy for knowingly violating a "protective order issued to prevent domestic or family violence issued under IC 34-26-5." App. p. 18.

At Gaines's bench trial, Gaines objected to the admission of State's Exhibits 1 and 2. State's Exhibit 1 is a certified copy of the ex parte protection order that ordered Gaines not to contact S.G. and to stay away from S$.G.'s residence. Page 2 of the order in the exhibit binder is missing. The last page of the exhibit is a Marion County Sheriffs Department Return of Service that indicated Gaines was personally served with a copy of the order on May 17, 2012. State's Exhibit 2 is a certified printout from the Indiana Protection Order Registry that indicates Gaines re-eeived personal service of the order on May 17, 2012 by Deputy Bouma. Gaines argued that the service information on the exhibits violated his confrontation rights, that the exhibits contained hearsay, and that State's Exhibit 2 was not properly certified. The trial court overruled Gaines's objections. The trial court found Gaines guilty as charged. He was then sentenced to 365 days suspended with 180 days of probation. Gaines now appeals.

Analysis

I. Variance

Although Gaines argues that the evidence is insufficient to sustain his conviction, the basis of his argument is that there was a variance between the charging information and the proof at trial. Gaines was charged with invasion of privacy under Indiana Code Section 35-46-1-15.1, which provides:

A person who knowingly or intentionally violates:
(1) a protective order to prevent domes-tie or family violence issued under IC 34-26-5 (or, if the order involved a family or household member, under IC 34-26-22 or IC 34-4-5.1-5 before their repeal); [or]
(2) an ex parte protective order issued under IC 34-26-5 (or, if the order involved a family or household member, an emergency order issued under IC 34-26-2 or IC 34-4-5.1 before their repeal);
# # ig # * *
commits invasion of privacy, a Class A misdemeanor.

The charging information here alleged that Gaines knowingly violated "[al protective order issued to prevent domestic or family violence issued under IC 34-26-5." App. p. 18. At trial, the State presented evidence that Gaines violated an ex parte protective order, not a protective order.

Gaines argues that, as a result of this difference, the State did not meet its burden of proof and the evidence is insufficient to sustain his conviction. The State argues that the evidence is sufficient and there is no variance between the charging information and the evidence at trial because "every ex parte order issued under Chapter 34-26-5 is a protective order to prevent domestic or family violence issued under Chapter 34-26-5." Appellee's Br. p. 7. Alternatively, the State argues that any variance between the charge and the proof in this case is immaterial.

The main difference between an ex parte protective order and a protective order is that an ex parte protective order is issued before a hearing is held. We need not decide, however, whether there is a variance between the charging information and the proof at trial because alleged variance is not fatal. A variance between the charging information and proof at trial does not necessarily require reversal. Broude v. State, 956 N.E.2d 130, 185 (Ind.Ct.App.2011), trans. denied. The test to determine whether a variance is fatal is:

(1) was the defendant misled by the var-fiance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in [a] future criminal proceeding covering the same event, facts, and evidence against double jeopardy?

Id. at 186. "Put another way, if the variance either misleads the defendant in the preparation of his defense resulting in prejudice or leaves the defendant vulnerable to double jeopardy in a future criminal proceeding covering the same event and evidence, then the variance is fatal." Id.

There is no indication that Gaines was misled by the alleged variance here. In fact, the difference between an ex parte protective order and a protective order was never mentioned during the trial. There was only one protective order issued, and 'there was no confusion as to what protective order was at issue. Gaines argues that the variance has the potential to subject him to a future criminal proceeding covering the same event, facts, and evidence, but he was only subject to one protective order at the time of these events. Gaines has failed to show how he is vulnerable to double jeopardy in a future criminal proceeding. Gaines has failed to demonstrate that the alleged variance was fatal.

II. Admission of State's Exhibits 1 and 2

Next, Gaines argues that the trial court abused its discretion by admitting State's Exhibits 1 and 2. We review the admission of evidence for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith v. State, 754 N.E.2d 502, 504 (Ind.2001).

A. State's Exhibit 1

Gaines argues that State's Exhibit 1, which was a certified copy of the ex parte protective order, should not have been admitted because it violated his rights under the Confrontation Clause of the Sixth Amendment. Specifically, Gaines takes issue with the admission of the last page of the exhibit, which was a Marion County Sheriffs Department Return of Service that indicated Gaines was personally served with a copy of the order on May 17, 2012. Gaines complains that he was not able to cross-examine the Sheriff's deputy regarding the service.

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, states: "In all eriminal prose-eutions, the accused shall enjoy the right . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause prohibits the admission of an out-of-court statement if it is testimonial, the declarant is unavailable, and the defendant had no prior opportunity to cross-examine the witness. King v. State, 985 N.E.2d 755, 758 (Ind.Ct.App.2013) (citing Crawford v. Washington, 541 U.S. 86, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004)), trons. denied. Although the Crawford court intentionally refrained from defining what evidence is testimonial, it listed three "formulations of this core class of 'testimonial' statements":

(1) ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;
(2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;
(3) statements that were made under cireumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Pendergrass v. State, 918 N.E.2d 703, 706 (Ind.2009) (quoting Crawford, 541 U.S. at 50-52, 124 S.Ct. at 1864), cert. denied. "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial." Melendes-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527, 2539-40, 174 L.Ed.2d 314 (2009).

The return of service of the ex parte protective order is at issue here. Indiana Trial Rule 4.15(B) provides:

The return, along with the summons to which it is attached or is a part, the praecipe for summons, affidavits furnished with the summons or praecipe for summons, and all other affidavits permitted by these rules shall be filed by the clerk with the pleadings and other papers in the case and thereupon shall become a part of the record, and have such evidentiary effect as is now provided by law. Copies of such record shall be admissible in all actions and proceedings and may be entered in any public records when certified over the signature of the clerk or his deputy and the clerk's seal.

Ind. R. Trial P. 4.15. Additionally, returns of service are admissible under the public records exception of the hearsay rules. See Ind. Evid. R. 808(8); see eg., United States v. Union Nacional de Trabajadores, 576 F.2d 388, 391 (1st Cir.1978) (holding that a sheriff's return of service was admissible under Federal Evidence Rule 803(8)).

Although our courts have not yet addressed returns of service in the context of the Confrontation Clause, other courts have addressed and rejected the argument made by Gaines. For example, in State v. Copeland, 353 Or. 816, 306 P.3d 610, 627 (2013), the Oregon Supreme Court: addressed the admissibility of a certificate of service of a restraining order in the context of the Confrontation Clause and Crawford. The court noted that "the primary purpose" of the certificate of service "was to serve the administrative functions of the court system, ensuring that defendant, the respondent in the restraining order proceeding, received the notice to which he is statutorily and constitutionally entitled, establishing a time and manner of notice for purposes of determining when the order expires or is subject to renewal, and assuring the petitioner that the subject of the order knew of its existence." Copeland, 306 P.3d at 627. Because the certificate of service was primarily created for an administrative purpose, the court concluded that "the certificate of service was not testimonial, and its admission did not violate defendant's Sixth Amendment confrontation rights." Id. at 628.

Other courts have reached the same result. See State v. Shivers, 280 Ariz. 91, 280 P.3d 635, 640 (Ct.App.2012) (holding that "[tlhe [declaration of servicel was non-testimonial because it was created primarily for an administrative purpose rather than for a prosecutorial purpose" and "the trial court did not violate [the defendant's] Sixth Amendment right to confront witnesses by admitting the [declaration of service] in evidence without the officer's testimony or a showing he was unavailable and [the defendant] had been given the opportunity to cross-examine him"), review denied; State v. Tryon, 242 Or.App. 51, 255 P.3d 498, 500-02 (2011) (holding that "serving the restraining order and making proof of that service, and triggering notification to law enforcement agencies that a restraining order has been issued" were "routine, nonadversarial tasks" and the return of service was not testimonial); Com. v. Shangkuan, 78 Mass.App.Ct. 827, 948 N.E.2d 466, 472-73 (2011) (holding that a "return of service is not created solely for use in a pending eriminal prosecution" and it was not testimonial in the context of the Confrontation Clause), review denied.

We find these cases instructive. The primary purpose of the return of service is administrative-ensuring that the defendant received notice of the protective order. See I1.C. § 34-26-5-9(e) ("The sheriff of each county shall provide expedited service for an order for protection."). Although the return of service may be used later in a criminal prosecution, the return of service was not created solely for use in a pending or future eriminal prosecution. See Melendez-Diaz, 557 U.S. at 323-24, 129 S.Ct. at 2589-2540. As such, we conclude that the return of service was not testimonial, and its admission did not violate Gaines's rights under the Confrontation Clause.

B. State's Exhibit 2

Next, Gaines argues that the trial court abused its discretion by admitting State's Exhibit 2, which is a certified printout from the Indiana Protection Order Registry that indicates Gaines received personal service of the order on May 17, 2012 by Deputy Bouma. Gaines argues that the printout contains hearsay statements regarding service of the protective order and that the printout is not admissible under Indiana Evidence Rule 808(8).

We need not address Gaines's argument because the service information in State's Exhibit 2 is cumulative of the service information in State's Exhibit 1. The admission of evidence is harmless and is not grounds for reversal where the evidence is merely cumulative of other evidence properly admitted. Collins v. State, 966 N.E.2d 96, 104 (Ind.Ct.App.2012). Because the trial court properly admitted State's Exhibit 1, which details the service of the protective order on Gaines, any error in the admission of State's Exhibit 2, which contains the same information, is harmless.

Conclusion

The trial court properly admitted State's Exhibit 1 and State's Exhibit 2, and the alleged variance was not fatal. We affirm.

Affirmed.

ROBB, C.J., and BROWN, J., concur.

      . Gaines also argues that the ex parte protective order is not "substantial evidence of probative value" to support his conviction because page 2 of the exhibit is missing. Appellant's Br. p. 9. Gaines argues that, without page 2, "the Court cannot fairly evaluate whether Mr. Gaines' conviction is supported by proof beyond a reasonable doubt." Id. at 10. Indiana Evidence Rule 106 allows an adverse party to "require ... the introduction of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it." However, Gaines did not object to the admission of State's Exhibit 1 on this basis, and he makes no argument that the admission of the exhibit was fundamental error. Moreover, the. exhibit clearly demonstrates that a protective order was issued to S.G. to prevent Gaines from contacting her and clearly ordered Gaines to stay away from S.G.'s residence. The missing page does not affect the sufficiency of the evidence. ©