author: BRADFORD, Judge.

text:
    Gregory DICKENS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 71A03-1304-PC-101.
    Court of Appeals of Indiana.
    Oct. 24, 2013.

      Stephen T. Owens, Public Defender of Indiana, Steven H. Schutte, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

Appellant-Petitioner Gregory Dickens was convicted of murdering a police officer while the officer was engaged in his official duties. Dickens’s conviction was affirmed by the Indiana Supreme Court on direct appeal. Dickens sought post-conviction relief, arguing, inter alia, that he was entitled to a new trial in light of newly discovered evidence, that he was entitled to a new trial because the State withheld evidence from the defense in violation of Brady v. Maryland,, and that he received ineffective assistance of trial counsel. Dickens now appeals from the denial of his petition for post-conviction relief. Concluding that Dickens was not entitled to a new trial in light of either the newly discovered evidence or the alleged Brady violation, and that Dickens did not receive ineffective assistance of trial counsel, we affirm.

FACTS AND PROCEDURAL HISTORY

The Indiana Supreme Court’s opinion in Dickens’s direct appeal instructs us as to the underlying facts leading to this post-conviction appeal:

On August 24, 1997, sixteen-year-old Dickens was riding bikes with Quinton Price, known as “Paulie.” While patrolling the area, Officer Scott Hanley advised Corporal Paul Deguch by radio that Dickens was riding a valuable bicycle that he suspected was stolen. Later on that evening, Deguch spotted Dickens and Paulie and approached them in his patrol car. Paulie rode off, while Dickens rode up to the nearest house, 1024 Talbot Street, alighted from the bike, and went up on the porch. De-guch shined his spotlight onto the porch, exited his car, and followed Dickens onto the porch as Dickens was knocking on the door. Dickens shot Corporal De-guch in his head and shoulder and killed him.
The State charged Dickens with murder and sought the death penalty because the victim was a law enforcement officer. A jury found Dickens guilty, and recommended life imprisonment without parole, which the trial court imposed.

Dickens v. State, 754 N.E.2d 1, 3-4 (Ind.2001). The Indiana Supreme Court affirmed Dickens’s conviction on direct appeal. Id. at 4-7.

On August 26, 2002, Dickens filed a pro se petition for post-conviction relief (“PCR”). On November 22, 2011, March 6, 2012, August 3, 2012, and November 15, 2012, Dickens, by counsel, filed amended PCR petitions. The post-conviction court conducted a two-day evidentiary hearing on Dickens’s last amended PCR petition on December 18 and 19, 2012. During this hearing, Dickens, by counsel, presented argument in support of his amended PCR petition. On March 4, 2013, the post-conviction court issued an order denying Dickens’s request for PCR.

DISCUSSION AND DECISION

Post-conviction procedures do not afford the petitioner with a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind.1999). Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules. Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.Ct.App.1999), trans. denied.

Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We therefore accept the post-conviction court’s findings of fact unless they are clearly erroneous but give no deference to its conclusions of law. Id.

I. Newly Discovered Evidence

Dickens contends that the post-conviction court erroneously determined that he was not entitled to a new trial in light of certain newly discovered evidence. Specifically, Dickens argues that a report issued by the National Research Counsel (“NRC”), which was completed in 2004, established that the previously accepted and relied upon comparative bullet lead analysis (“CBLA”) conducted by the FBI was unreliable. As such, Dickens claims that the newly discovered NRC report was relevant and would warrant a new trial because it would render inadmissible FBI forensic examiner Charles Peters’s testimony about the CBLA conducted on the spent bullets recovered from the crime scene and the unspent bullets found in Dickens’s bedroom prior to Dickens’s trial.

The Indiana Supreme Court has enunciated nine criteria for admission of newly discovered evidence.

[N]ew evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Taylor v. State, 840 N.E.2d 324, 329-30 (Ind.2006) (citing Carter v. State, 738 N.E.2d 665, 671 (Ind.2000)) (brackets in original). On appeal, the denial of a petition predicated on newly discovered evidence is considered a discretionary ruling and is reviewed deferentially. Fox v. State, 568 N.E.2d 1006, 1007 (Ind.1991) (citing Hammers v. State, 502 N.E.2d 1339 (Ind.1987)). Accordingly, we analyze the nine factors “ ‘-with care, as the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.’ ” Taylor, 840 N.E.2d at 330 (quoting Carter, 738 N.E.2d at 671). “The burden of showing that all nine requirements are met rests with the petitioner for post-conviction relief.” Id. (citing Webster v. State, 699 N.E.2d 266, 269 (Ind.1998)).

In the instant matter, Dickens does not dispute the post-conviction court’s findings regarding the first eight requirements. Dickens merely argues that the post-conviction court erroneously determined that the NRC report would not produce a different result at retrial. As such, we will limit our review on appeal to this final requirement.

“In ruling whether a piece of evidence would produce a different result, the judge may properly consider the weight that a reasonable trier of fact would give it and, while so doing, may also evaluate its probable impact on a new trial in light of all the facts and circumstances shown at the original trial of the case.” Fox, 568 N.E.2d at 1007. “The defendant must raise a strong presumption that the result at any subsequent trial in all probability would be different.” Bunch v. State, 964 N.E.2d 274, 296 (Ind.Ct.App.2012), reh’g denied, trans. denied. “A sufficient probability of a different result upon retrial is present where the omitted evidence creates a reasonable doubt that did not otherwise exist.” Fox, 568 N.E.2d at 1008.

The post-conviction court found that in light of the findings contained in the NRC report, Peters’s testimony regarding the CBLA would not likely be admissible at retrial. Although the exclusion of the CBLA evidence might have weakened the State’s case, Dickens has not shown that the exclusion of the CBLA evidence, without more, would make it probable that a different result would be produced at retrial. As the post-conviction court noted, the CBLA evidence did not place Dickens on the porch at the time Corporal Deguch was shot, eyewitness testimony did.

The essential elements of the State’s case were established through eyewitness testimony. Myron Crawford and Rufus Tate each testified that they saw Dickens on the porch with Corporal Deguch at the time of the shooting. Neither Crawford nor Tate saw anyone else on the porch. At the time of the shooting, Crawford was with his sister, Lolita Lewis, and a friend inside the house that is connected to the porch where Corporal Deguch was shot. Tate was sitting on the porch of his residence across the street from the porch where Corporal Deguch was shot.

After Corporal Deguch followed Dickens onto the porch, Crawford saw Dickens turn toward Corporal Deguch and raise his hand. Crawford then heard four gunshots and saw a flash coming from Dickens’s hand. Crawford testified that Dickens appeared to be standing “right in front of’ Corporal Deguch approximately two or three feet from Corporal Deguch at the time that Corporal Deguch was shot. Trial Tr. p. 2575. After being shot, Corporal Deguch fell forward against Dickens who “pushed him up off him.” Trial Tr. p. 2575.

Tate also heard something that “sounded like firecrackers” and saw “some flashes.” Trial Tr. p. 2526. Lewis also heard gunfire. After hearing gunfire, Lewis looked out onto the porch. Lewis saw Dickens run from the stairs at the bottom of the porch. Each of these witnesses testified that they knew Dickens prior to the shooting and provided a similar description of the clothing that Dickens was wearing at the time of the shooting. Moreover, the record is devoid of any suggestion that any of the eyewitnesses had any motive to fabricate their testimony.

The State also presented evidence at trial of Dickens’s actions immediately following the shooting. After shooting Corporal Deguch, Dickens ran to his cousin’s home. Dickens’s cousin lived nearby. Upon arriving at his cousin’s home, Dickens appeared anxious to get inside the home and would not answer any questions. Consistent with the description of Dickens’s clothing given by Crawford, Lewis, and Tate, Dickens was wearing a black hooded sweater. Dickens later told his cousin that Corporal Deguch had been shot. During a subsequent search of Dickens’s cousin’s home, investigators recovered the clothing that Dickens was wearing at the time of the shooting, including the black hooded sweater.

Dickens testified at trial that he did not shoot Corporal Deguch. Dickens admitted that he was on the porch but claimed that Shawn Bailey shot Corporal Deguch three or four times as Corporal Deguch began to search Dickens. Bailey, however, denied any involvement in the shooting and had an alibi for his whereabouts at the time of the shooting. Bailey’s alibi was corroborated by another witness.

In addition, the unchallenged forensic evidence demonstrated that all four of the bullets recovered from the crime scene were shot from the same firearm; that the bullets’ design, weight, and caliber were consistent with .38 caliber ammunition manufactured by Remington; and that a box of ammunition matching that description was found in Dickens’s bedroom. Dr. Kristen Jacobs, a pathologist with the South Bend Medical Foundation, conducted an autopsy on Corporal Deguch’s body. Dr. Jacobs testified that Corporal Deguch suffered four gunshot wounds, including gunshot wounds to the head, left’ side of the neck, right shoulder, and right forearm. Dr. Jacobs further testified that Corporal Deguch’s autopsy revealed “stippled marks in the skin where both burned and unburned powder residue that escape[d] from the gun when the bullet [was] shot landed on the skin and embedded on the skin.” Trial Tr. p. 2749. Dr. Jacobs determined that the bullets entered Corporal Deguch’s body from the front.

With respect to the gunshot wound to Corporal Deguch’s head, Dr. Rick Hoover, a forensic pathologist with the South Bend Medical Foundation, testified that the gunshot wound to Corporal Deguch’s head was shot from a “distance of between six and thirty-six inches at the time of discharge.” Trial Tr. p. 2874. With respect to the gunshot wound to Corporal Deguch’s shoulder, Dr. Hoover testified that the muzzle of the firearm used in the shooting was “touching the shoulder at the time of discharge.” Trial Tr. p. 2877. Both the gunshot wound to the head and to the shoulder were fatal gunshot wounds.

Upon review, we conclude that the State provided overwhelming evidence of Dickens’s guilt. In light of the overwhelming evidence of Dickens’s guilt, we cannot say that exclusion of the CBLA evidence would “probably” produce a different outcome at retrial. See Taylor, 840 N.E.2d at 330. As such, we conclude that the post-conviction court did not err in determining that the newly discovered evidence did not entitle Dickens to a new trial.

II. Brady Claim

Dickens also contends that the State withheld evidence relating the reliability of the CBLA evidence from his counsel prior to trial in violation of Brady. Specifically, Dickens argues that the State should have known that the reliability of the CBLA evidence was questionable, but failed to inform his trial counsel.

In [Brady ], the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution.” [373 U.S. at 87, 83 S.Ct. 1194], To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial. Id.; United States v. Bagley, 473 U.S. 667, 685, 105 S.Ct. 3375, 3385, 87 L.Ed.2d 481 (1985).

Minnick v. State, 698 N.E.2d 745, 755 (Ind.1998). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. “A ‘reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Dickens claims that the State should have known that there were questions relating to the reliability of the CBLA evidence and should have disclosed such information to his counsel prior to trial. In support, Dickens relies on the post-conviction testimony of Dr. Mark Lebeau, a senior forensic scientist at the FBI Laboratory in Quantico, Virginia. Dr. Lebeau testified that the FBI permanently discontinued CBLA in 2005 after receiving the 2004 NRC report. While Dr. Lebeau testified that he was not aware of any legal challenges to CBLA evidence prior to 2002, he further testified that the FBI conducted a study “in the early nineties that was confusing is the only way [to] put it.” PCR Tr. p. 115. With respect to this study, Dr. Lebeau testified that:

We had an examiner grab two different boxes of bullets, packaged at different times, from the same manufacturer, out of our firearms collection at the lab. So they just randomly grabbed two boxes of maybe Winchester bullets, and they were analytically the same, and at the time the thought was, okay, either they had a repeat melt, or what had happened is, you know, this is a manufacturing process, and they don’t necessarily, you know, they’re putting these bullets in these big hoppers. They don’t necessarily go down to the very last bullet before they replace it.... So in our discussions with the manufacturer they said, well, that could very well be a reasonable explanation is that something just didn’t get packaged for like a 10-month period. It was sitting at the bottom of the hopper, and finally, however they do it I don’t know, is somebody reached in and grabbed the bottom and happened to throw some in. Now that’s a possibility. The possibility is that it was a repeat melt. My opinion is it’s probably a repeat melt, because what’s the chance we just happened to pull two boxes off the shelf?
But so it was recognized as early as the early nineties that you could potentially have a repeat melt, but we really, based on the research we had done, other than this, we didn’t think it was that high of a probability.

PCR Tr. pp. 115-16. In light of Dr. Le-beau’s testimony, Dickens claims that the FBI, and by extension the State, should have known that there were questions regarding the reliability of CBLA evidence, and should have informed his trial counsel of these questions prior to trial.

Again, in order to prevail on a Brady claim, a petitioner must demonstrate that the evidence in question was material to an issue at trial. See Minnick, 698 N.E.2d at 755. Evidence is only material if there is a reasonable probability that the outcome of the trial would have been different if the evidence had been disclosed to the defense. See Bagley, 473 U.S. at 682, 105 S.Ct. 3375. As we discussed above, the State provided overwhelming evidence of Dickens’s guilt that was not related to or affected by the CBLA evidence. This overwhelming evidence included eyewitness testimony placing only Dickens on the porch with Corporal Deguch at the time of the shooting, testimony regarding Dickens’s actions immediately following the shooting, evidence contradicting Dickens’s account of who shot Corporal Deguch, and other unchallenged forensic evidence. In light of this overwhelming evidence of Dickens’s guilt, we conclude that Dickens cannot establish that there is a reasonable probability that the outcome of his trial would have been different if the State had notified Dickens’s counsel of the questionable nature of the reliability of the CBLA evidence prior to trial. Accordingly, the post-conviction court did not err in determining that Dickens did not suffer a Brady violation which would necessitate a new trial.

III. Ineffective Assistance of Counsel

“The right to effective counsel is rooted in the Sixth Amendment to the United States Constitution.” Taylor, 840 N.E.2d at 331. “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052).

A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind.2007). Under the first prong, the petitioner must establish that counsel’s performance was deficient by demonstrating that counsel’s representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or most effective way to represent a client and therefore under this prong, we will assume that counsel performed adequately, and will defer to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind.2002). Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id.

Under the second prong, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “a reasonable probability (ie., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different.” Id. A petitioner’s failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[although the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (citing Williams, 706 N.E.2d at 154).

Dickens challenges the post-conviction court’s determination that his trial counsel were not ineffective. Dickens claims that his trial counsel were ineffective for failing to protect his right to be tried free of restraints. Specifically, Dickens argues that his counsel were ineffective for failing to object to the use of a stun belt, worn under his clothes, as a restraint at trial.

A defendant has the right to appear in front of a jury without physical restraints, unless such restraints are necessary to prevent the defendant’s escape, to protect those present in the courtroom, or to maintain order during trial. Bivins v. State, 642 N.E.2d 928, 936 (Ind.1994). This right springs from the basic principle of American jurisprudence that a person accused of a crime is presumed innocent until proven guilty beyond a reasonable doubt. Sweet v. State, 498 N.E.2d 924, 929 (Ind.1986), superceded on other grounds by Ind. Evidence Rule 404; see also Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). For this presumption to be effective, courts must guard against practices that unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion. Sweet, 498 N.E.2d at 929; see also Holbrook, 475 U.S. at 567-68,106 S.Ct. 1340; Estelle, 425 U.S. at 503, 96 S.Ct. 1691.

Wrinkles, 749 N.E.2d at 1193 (Ind.2001).

In arguing that his trial counsel were ineffective for failing to object to the use of the stun belt at trial, Dickens points to Deck v. Missouri, in which the United States Supreme Court held that due process does not permit the use of visible restraints if the trial court has not taken into account the circumstances of the particular case. 544 U.S. 622, 632, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). In reaching this holding, the Court noted that the “law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.” Id. at 626, 125 S.Ct. 2007. The Court determined that “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Id. at 629, 125 S.Ct. 2007. “Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.” Id.

Upon review, we conclude that Dickens has failed to prove that he was prejudiced by trial counsel’s failure to object to his wearing a stun belt during trial. The United States Court of Appeals for the Seventh Circuit has described the use of a stun belt as a “ ‘method! ] of restraint that minimize[s] the risk of prejudice’ because it is hidden beneath a defendant’s clothing.” Stevens v. McBride, 489 F.3d 883, 899 (7th Cir.2007) (quoting United States v. Brooks, 125 F.3d 484, 502 (7th Cir.1997)) (brackets in original). Unlike shackles, which when worn are readily visible, a stun belt is worn under clothing and is, in most cases, unlikely to be visible to the members of the jury. Here, nothing in the record suggests that any member of the jury actually saw the stun belt.

In Wrinkles, counsel indicated that it did not object to the use of a stun belt because counsel did not believe the belt would be visible to members of the jury. 749 N.E.2d at 1195. The Indiana Supreme Court concluded that the petitioner failed to sustain his burden of demonstrating that counsels’ performance fell below an objective standard of reasonableness because counsel did not believe an objection to the use of restraints would be sustained and also because counsel believed the use of the stun belt would be less prejudicial than the use of shackles. Id. In Brooks, the United States Court of Appeals found that the trial court was justified in putting stun belts on the defendants to cover potential security risks where the defendants had a history of violence and had previously attempted to escape from custody. 125 F.3d at 502.

During the PCR hearing, one member of Dickens’s trial counsel team stated that he did not object to the use of the stun belt because he did not consider it to be a restraint since it was not visible. This counsel also indicated that because of the nature of the charges levied against Dickens, he did not believe that any objection to the use of restraints would have been sustained. This counsel indicated that he subsequently questioned Dickens about the stun belt because he thought the belt might have been visible when Dickens moved around the court room. This conversation included a vague reference to an electronic restraint that was being worn for security purposes. This counsel chose not to expand upon this line of questioning and did not mention the restraint at any other time during trial.

The post-conviction court noted that Dickens had a history of attempted flight from police and a history of violence, both in and out of custody. Dickens had fled from police both in a vehicle and on foot on two prior occasions. Dickens had previously “pistol whipped” someone, pointed a gun at another person’s face, and engaged in fights while in custody. Appellant’s App. p. 313. The post-conviction court also noted that Dickens’s trial occurred in a tense and emotional atmosphere in which a teenager was facing the death penalty for killing a police officer while the officer was engaged in his official police duties. The post-conviction court found that in light of these facts, it was unlikely that any objection to the use of restraints would have been sustained.

On appeal, Dickens failed to demonstrate that he was prejudiced by counsels’ failure to object to the use of the stun belt. Again, a petitioner shows prejudice by demonstrating that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. As we have discussed above, the State provided overwhelming evidence of Dickens’s guilt, including eyewitness testimony placing only Dickens on the porch with Corporal Deguch at the time of the shooting, testimony regarding Dickens’s actions immediately following the shooting, evidence contradicting Dickens’s account of who shot Corporal De-guch, and other unchallenged forensic evidence. Upon finding Dickens guilty of Corporal Deguch’s murder, the jury considered the facts and circumstances argued by the parties and recommended life imprisonment without parole rather than the death penalty. The trial court accepted this recommendation.

Again, the stun belt was not visible to the jury, the record contained one passing reference to the use of restraints, and the post-conviction court found that an objection to the use of the restraints would likely have been denied. In light of these facts coupled with the overwhelming evidence of Dickens’s guilt, we conclude that Dickens has failed to show that the outcome of the proceeding would have been different had Dickens’s trial counsel objected to the use of a stun belt during trial. Further, to the extent raised by Dickens on appeal, Dickens has also failed to show that the jury’s recommendation with regard to sentencing would have been different but for counsel’s alleged error. As such, we conclude that Dickens cannot establish that he suffered ineffective assistance of trial counsel because he has failed to demonstrate that he was prejudiced by counsel’s allegedly ineffective performance. See Reed, 866 N.E.2d at 769 (providing that in order to prove a claim of ineffective assistance of counsel, petitioner must prove both prongs set forth in Strickland, i.e., defective performance and prejudice); see Grinstead, 845 N.E.2d at 1031 (providing that a claim of ineffective assistance of counsel can be disposed of on either prong).

CONCLUSION

In sum, because we conclude that the newly discovered evidence did not necessitate a new trial, Dickens did not suffer a Brady violation that would necessitate a new trial, and Dickens did not receive ineffective assistance of trial counsel, we affirm the judgment of the post-conviction court.

The judgment of the post-conviction court is affirmed.

BAILEY, J., and MAY, J., concur.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

        . Peters testified that three of the bullets recovered from the crime scene were analytically indistinguishable from fourteen bullets from the box of ammunition found in Dickens’s room, and that the fourth bullet from the crime scene matched the composition of the other six bullets in the box of ammunition found in Dickens’s room. Peters opined that the victim associated bullets came from the box of ammunition or from any of the other boxes of ammunition that were produced at that same time.

      . Regarding the first eight requirements, the post-conviction court found that the findings contained in the NRC report were discovered since Dickens’s trial, the NRC report is relevant, the NRC report is not cumulative of evidence presented at trial, the NRC report is not “merely impeaching,” the NRC report is not privileged, Dickens's trial counsel exercised due diligence as the NRC report could not have been discovered prior to trial, the CBLA critique contained in the NRC report is worthy of credit, and the NRC report could be reproduced at retrial.

      . A stun belt is an electronic shocking device that is secured around the wearer’s waist. Wrinkles v. State, 749 N.E.2d 1179, 1193 (Ind. 2001).

      . We note that the Indiana Supreme Court held in 2001 that stun belts could no longer be used on defendants in Indiana courtrooms due to the mental anguish that results from simply wearing the stun belt and the physical pain that results if the belt is activated. Wrinkles, 749 N.E.2d at 1194-95. This holding, however, was handed down well after Dickens's trial and, accordingly, does not impact Dickens's claim on appeal. See generally id. at 1195 (providing that petitioner is not entitled to relief merely because the Indiana Supreme Court prohibits future use of stun belts in Indiana courtrooms).


source: Caselaw Access Project

license: Public Domain

text:
    Nathaniel BAKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 35A05-1210-CR-543.
    Court of Appeals of Indiana.
    Oct. 25, 2013.

      Jill M. Acklin, Acklin Law Office, LLC, Westfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Indianapolis, IN, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

CASE SUMMARY

During the early morning hours of December 5, 2011, Appellant-Defendant Nathaniel Baker, J.L., and Rodney Zellers stole approximately forty-five gallons of gasoline belonging to David Stephan. On December 15, 2011, the State charged Baker "with one count of Class D felony theft. During trial, the State introduced evidence of prior bad acts committed by Baker. The trial court admitted this evidence over Baker’s objection. Baker presented an alibi defense, claiming that he was with his fiancee the entire night in question. At the conclusion of trial, the jury found Baker guilty as charged. The trial court subsequently imposed a sentence of one and one-half years, with one year suspended. On appeal, Baker contends that the trial court abused its discretion in admitting the evidence of his prior bad acts. Concluding that it was error to admit the evidence of Baker’s prior bad acts but that the admission of the challenged evidence was harmless, we affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 1:00 or 2:00 a.m. on December 5, 2011, Baker and J.L. went to Zellers’s residence. Baker and J.L. requested that Zellers come and help them steal some gasoline. Zellers drove Baker’s vehicle to a farm located in Huntington County. Once at the farm, Baker and J.L. got out of the vehicle and stole approximately forty-five gallons of gasoline from gasoline tanks located on the property. The farm was owned by Stephan. Stephan did not know Baker, J.L., or Zellers and did not give any of the men permission to take the gasoline. It was Baker’s idea to steal the gasoline, and Baker kept all of the gasoline.

Later that morning, J.L. went to school. He was sent to the principal’s office because he smelled like gasoline. While in the principal’s office, J.L. told Detective Mike Davis that he smelled like gasoline because he, Baker, and Zellers had stolen gasoline earlier that morning. Shortly thereafter, Detective Davis interviewed Zellers. Zellers admitted that he had participated, with Baker and J.L., in the theft of gasoline during the early morning hours of December 5, 2011. Zellers also agreed to take Detective Davis to the location from where they had stolen the gasoline.

On December 15, 2011, the State charged Baker with one count of Class D felony theft. On April 17, 2012, Baker filed a notice of alibi. The trial court conducted a jury trial on September 23, 2012. During trial, Baker’s fiancée, Sherry Draper, testified that Baker could not have participated in the theft because he was with her on the night in question. Draper testified that she picked Baker up from work at 1:30 a.m. and that they stayed up until nearly 4:00 a.m. On cross-examination, the State attacked Draper’s credibility by questioning her about why she did not pick Baker up from work until 1:30 a.m. when his employment records indicat- ■ ed that his shift ended and he clocked out at 12:30 a.m. Following the conclusion of the presentation of evidence, the jury found Baker guilty as charged. The trial court subsequently sentenced Baker to a term of one and one-half years, with one year suspended to probation.

DISCUSSION AND DECISION

I. Admission of Evidence

Baker contends that the trial court abused its discretion in admitting certain evidence at trial. Specifically, Baker argues that the trial court abused its discretion in admitting evidence of his prior bad acts. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Ware v. State, 816 N.E.2d 1167, 1175 (Ind.Ct.App.2004) (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)). An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

A. Indiana Evidence Rule 404(b)

Indiana Evidence Rule 404(b) provides that evidence of other crimes, wrongs, or acts of a defendant is not admissible to prove the character of the defendant in order to show action in conformity therewith. “It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid. R. 404(b). In assessing the admissibility of Evidence Rule 404(b) evidence, the trial court must (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect. Goldsberry v. State, 821 N.E.2d 447, 455 (Ind.Ct.App.2005). The well-established rationale behind Evidence Rule 404(b) is that the jury is precluded from making the forbidden inference that the defendant had a criminal propensity and therefore engaged in the charged conduct. Id.

It is undisputed that the State sought to introduce evidence of prior bad acts committed by Baker during trial. During the State’s direct examination of J.L., the parties approached the bench to address the admission of evidence of Baker’s prior bad acts outside of the presence of the jury. We are unable to discern the arguments given by the State as to why the evidence of Baker’s prior bad acts should be admitted because the conversation between the parties and the trial court was not recorded and is not available to this court on review. After this conversation, the State continued its direct examination of J.L. The deputy prosecutor asked J.L. whether this was the first time that he and Baker had stolen gas. J.L. responded negatively and, upon further questioning by the deputy prosecutor, stated that he and Baker had stolen gas “[l]ike two or three (2-3) times.” Tr. p. 108.

In arguing that the trial court abused its discretion in admitting this evidence, Baker argues that the record is devoid of any indication that the evidence of Baker’s pri- or bad acts was introduced for any purpose other than to show that he had a propensity to steal gasoline. The State counters, arguing that the trial court acted within its discretion in admitting the evidence of Baker’s prior bad acts because the deputy prosecutor “was entitled to refute [Baker’s alibi defense] by introducing evidence of prior offenses of the same nature to show [Baker’s] knowledge, identity, and intent.” Appellee’s Br. p. 8.

1. Knowledge

In Whitehair v. State, 654 N.E.2d 296, 302 (Ind.Ct.App.1995), we concluded that, with respect to a defendant’s knowledge of the wrongfulness of his actions, evidence of a defendant’s prior bad acts is only admissible when the defendant puts his knowledge in issue. Nothing in the record indicates that Baker put his knowledge in issue. Baker did not claim that he believed that he was entitled to take the gasoline. Rather, he claimed that he was not involved in the alleged theft of the gasoline. The State does not point to anything in the record that would suggest that Baker put his knowledge in issue or present any authority in support of its claim. As such, we conclude that the evidence of Baker’s prior bad acts was not admissible under the knowledge exception to Evidence Rule 404(b).

2. Identity

The identity exception to Evidence Rule 404(b) is “crafted primarily for ‘signature’ crimes with a common modus operandi.” Thompson v. State, 690 N.E.2d 224, 234 (Ind.1997). “The exception’s rationale is that the crimes, or means used to commit them, were so similar and unique that it is highly probable that the same person committed all of them.” Id. “The test, of course, is whether the crimes are strikingly similar.” Garland v. State, 788 N.E.2d 425, 431 (Ind.2003). In the instant matter, there were no details given about the previous times that J.L. and Baker stole gas. As such, the State could not use this evidence to prove that the means used to commit the instant crime were so similar and unique to those used by Baker when committing the prior bad acts so as to make it highly probable that Baker committed all of the acts. See Thompson, 690 N.E.2d at 234. The evidence of Baker’s prior bad acts was not admissible under the identity exception to Evidence Rule 404(b).

3. Intent

In Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993), the Indiana Supreme Court held that the intent exception in Evidence Rule 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. Stated another way, “the defendant must first place intent ‘at issue’ before prior bad act evidence relevant to intent is admissible.” Johnson v. State, 722 N.E.2d 382, 384 (Ind.Ct.App.2000). In this case, Baker did not place his intent into issue. Baker did not present a claim of a particular contrary intent but rather argued that he did not participate in the alleged theft. As such, we conclude that evidence of Baker’s prior bad acts was not admissible under the intent exception to Evidence Rule 404(b).

Having concluded that the evidence of Baker’s prior bad acts was not properly admitted under the knowledge, identity, or intent exceptions of Evidence Rule 404(b), we find that the record is devoid of any indication that the evidence was introduced for any purpose other than to show that Baker had the propensity to steal gasoline. As such, we conclude that it was error to admit the evidence of Baker’s prior bad acts.

B. Whether the Erroneous Admission of the Evidence Was Harmless

Although we find the admission of the prior conduct evidence to have been error, not all trial errors compel reversal.

No error in the admission of evidence is ground for setting aside a conviction unless such erroneous admission appears inconsistent with substantial justice or affects the substantial rights of the parties. The improper admission of evidence is harmless error when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction. To decide if the erroneous admission of prejudicial evidence of extrinsic offenses is harmless, we therefore evaluate whether the jury’s verdict was substantially swayed.

Wickizer, 626 N.E.2d at 800 (citations omitted). “The improper admission of evidence is harmless error when the reviewing court is satisfied that the conviction is supported by substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112, 1122 (Ind.Ct.App.2003). “To determine that the error did not contribute to the verdict, we determine whether the error was unimportant in relation to everything else the jury considered on the issue in question.” Id.

In the instant matter, we cannot say that there is a substantial likelihood that the challenged evidence substantially swayed the jury’s verdict. Resolution of the instant matter turned on a credibility determination by the jury. One must assume that the jury’s guilty finding indicates that the jury found J.L. and Zellers to be more credible than Draper. We find it unreasonable to think that the jury’s decision as to credibility of the witnesses turned on the fact that J.L. briefly testified without detail that he and Baker had stolen gasoline on prior occasions.

Again, both J.L. and Zellers gave consistent accounts of the trio’s actions. Their testimony demonstrated that J.L. and Baker went to Zellers’s home around 1:00 or 2:00 a.m. on December 5, 2011, Zellers drove the trio in Baker’s vehicle to a farm located in Huntington County, and J.L. and Baker stole approximately forty-five gallons of gasoline from gasoline tanks located on the farm. Both J.L.’s and Zel-lers’s consistent accounts of the trio’s actions were bolstered by their actions in the day or two following the theft. J.L.’s account was bolstered by his testimony that he told police about the trio’s actions later that morning after he was sent to the principal’s office and questioned about why he smelled like gasoline. Likewise, Zel-lers’s account was bolstered by his immediate willingness to admit his participation in the theft and to take Detective Davis to the location where the theft occurred. Their testimony was in direct contradiction to Draper’s testimony that Baker could not have participated in the theft because he spent the entire night in question with her.

Upon review, we are convinced that there is no substantial likelihood that the questioned evidence contributed to Baker’s conviction in light of J.L.’s and Zellers’s consistent testimony about the trio’s actions and the jury’s apparent determination that J.L. and Zellers were more credible than Draper. As such, we conclude that the jury’s determination that Baker participated in the theft was supported by substantial independent evidence, and the erroneous admission of the evidence of Baker’s prior bad acts was harmless.

CONCLUSION

In sum, while we conclude that it was error for the trial court to admit the evidence of Baker’s prior bad acts, such error was harmless in light of J.L.’s and Zel-lers’s testimony regarding the theft of gasoline from Stephan.

The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.

      . We use initials when referring to J.L. because he was a minor at all times relevant to this appeal.

      . In an effort to provide this court with information about the unrecorded conversation between the trial court and the parties, Baker’s counsel filed a verified statement of the evidence on appeal. The verified statement of the evidence included a statement by the deputy prosecutor that she "asked to approach because [she] wanted to introduce evidence of a prior bad act and [she] wanted to give to defense to object outside the presence of a jury. The defense did object. The judge overruled the objection.” Appellant's App. p. 68.


author: PYLE, Judge.

text:
    Carrie A. KRAMPEN, Appellant-Respondent, v. James J. KRAMPEN, Appellee-Petitioner.
    No. 45A05-1212-DR-628.
    Court of Appeals of Indiana.
    Oct. 25, 2013.

      Debra Lynch Dubovich, Levy & Dubo-vich, Merrillville, IN, Attorney for Appellant.
    Paul A. Leonard, Burke Costanza & Carberry LLP, Merrillville, IN, Attorney for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Carrie Krampen, a/k/a Carrie Carpenter (“Carrie”) appeals the trial court’s grant of a petition to modify child support and provide an accounting of future child support payments filed by James J. Krampen (“James”), Carrie’s ex-husband.

We reverse and remand.

ISSUES

1. Whether the trial court’s findings of fact and conclusions of law supported the order of an accounting of future child support expenditures under Ind.Code § 31-16-9-6.
2. Whether the trial court’s findings of fact and conclusions of law supported the finding of a substantial and continuing change in circumstances justifying a reduction of child support.

FACTS

James and Carrie were married on June 8, 1991; four children were born during the marriage. On or about August 2,1999, James filed a petition for dissolution of the marriage. James and Carrie participated in mediation and, on June 19, 2001, the trial court approved a settlement agreement providing, in relevant part, that James pay $835.00 per week in child support for all four children. The agreement also stated that both parties would share in education expenses based on percentages of their total combined income.

The Judicial Administration Committee amended the child support guidelines in 2009 with those amendments going into effect January 1, 2010. Significant in those amendments were changes in the schedules determining the basic child support obligation, particularly when dealing with high income earners. On January 27, 2010, Carrie filed a petition to modify child support, alleging a substantial and continuing change. The parties participated in mediation and reached an agreement on or about November 10, 2010, increasing the child support order from $962.68 per week to $8,000.00 per week for the children retroactive to the January filing date. James made a “catch up payment” of $72,761.48 to comply with the order.

Carrie is a veterinarian who worked part-time in a local office. In the fall of 2010, Carrie began preparing to open her own veterinarian practice by remodeling a home she formerly used as rental property. In May of 2011, Carrie opened Your Hometown Animal Hospital in Crown Point.

On March 19, 2012, James filed a petition to modify his child support payment, alleging that Carrie used child support funds to establish and subsidize her veterinarian clinic. He asserted that the opening of Carrie’s veterinarian office and her alleged use of child support funds were a substantial and continuing change in circumstances necessitating the modification of child support. James requested an accounting pursuant to Ind.Code § 31 — 16—9— 6 and the establishment of a constructive trust.

On October 4, 2012, the trial court held a hearing on James’s petition for modification. Neither James nor Carrie testified. Instead, counsel submitted sworn depositions, exhibits, and presented arguments to the court. During his deposition, James admitted that the basic needs of his children (food, clothing, and shelter) were being met:

Q. All right. So do you think she’s spending too much on housing or too little.
A. I personally think — on housing?
Q. On housing for your children?
A. The amount or the type?
Q. The amount she’s spending?
A. Well, if she’s only spending $1,500 a month on the — on her mortgage, like she said she was, and insurance and whatnot like she’s put in her financial disclosures, I would say that’s almost a low amount. Plus you have to add in the thing, the build-out that she did for the $70,000. So I think that’s a good house at that point for the money.
Q. So you have no problem with what she’s spending on housing, she’s spending the right amount on that?
A. Yeah, if she — if all of those numbers pan out, I’m fine with it.
Q. Okay. And so you’re fine with the housing. How about what she spends on the kids’ clothes, is she spending too much, too little, in your opinion?
A. Now or in the past or what do you want to. know?
Q. Since January of 2010 forward, too much, too little, about the right amount?
A. About the right amount from what I — I mean, I know how much those clothes cost because we buy them for them too. So they’re not coming in with Gucci and Chanel and stuff like that. It’s just Abercrombie & Fitch, you know, it’s the Aero. It’s the stuff that every teenage kid wears, which is fine.
Q. So you have no argument about the amount she’s spending on clothes or the type of clothes she’s buying for the children?
A. No, I don’t know. To be honest, she can’t even answer how much she spends, so I don’t know. I don’t — I don’t know — the clothes look fine to me, they look fíne, they’re clothed. I know those clothes. Those clothes don’t cost that much, so I don’t know what she’s spending everything else on, but the clothes are fíne.
Q. What about the kids’ food, do you have any complaints with what she’s feeding the kids or how she’s feeding them?
A. No. They eat.
Q. What is that supposed to mean, they eat?
A. Well, they eat. They are not starving, that’s what I mean. It’s not like, dad, can you please bring food over. There’s food in the house. I don’t know — they’ve never complained to me, but they eat food in the house. Probably a lot of cereal and things of that nature just like every teenage kid does just like they eat at my house.

(James’s Dep. 48-50). Further, in support of his petition, James submitted Carrie’s 2011 income tax return, which showed an adjusted gross income of negative seventy-two thousand, one hundred forty-eight dollars (-$72,148). James also submitted checks from Carrie’s bank account; James alleged that the checks submitted were expenses for Carrie’s business and that child support funded those checks. The trial court entered findings of fact and conclusions of law granting James’s petition on November 19, 2012. The trial court’s relevant conclusions consisted of the following:

30.Father’s concerns as to Mother’s use of child support are well founded. While Father admits that the children are well cared for and that he does not object to all of Mother’s use of the child support he pays or has paid, Father’s primary concern, that child support be used for the support of the children and not for the subsidization of Mother’s business activities is supported by the evidence before the Court. Mother simply cannot meet her various monthly obligations, both those incurred directly by her and through her companies, through the methods she claimed she utilizes (draws on her [line of credit] and from the Wells Fargo Loan); indeed, Mother’s own testimony demonstrated that the funds that Animal Hospital pays to [her real estate company] are insufficient to meet the obligations that [the real estate company] is supposedly meeting with such funds and Mother failed to produce any documentary evidence of [the line of credit] or the Wells Fargo Loan; of loan draws upon the [the line of credit] or the Wells Fargo Loan; or even deposits of gross receipts from her business activity into her personal checking account. Finally, Mother asserted that all of her obligations are current yet [she] has no discernible earned income except for the child support paid by Father.
31. The Court, having considered the evidence before it finds and concludes that Mother has in fact made use of child support funds paid by Husband not for the direct benefit of the Parties’ children but for the benefit of Mother’s business enterprise in the total amount of $17,698.12. Such use of child support funds by Mother is not in keeping with her role as trustee of the child support funds for the benefit of the Parties’ children.
32. Father has established that a substantial change in circumstances has occurred such that the terms of the current support order are unreasonable in that Mother has utilized child support payments received for purposes other than support of the Parties’ children, specifically, Mother has used child support funds to meet debts and obligations that she has incurred either directly or through her companies. Moreover, Father has demonstrated that a deviation from the Child Support Guidelines is warranted due to Mother’s use of child support funds in the foregoing manner; the standard of living enjoyed by the Parties’ children will not suffer if the reduction in child support sought by Father is granted by this Court.
33. Father’s request for a modification of child support set forth in the Petition is GRANTED; Father’s child support obligation is hereby reduced to the total annual amount of $132,302.00 for a weekly child support obligation of $2,544.27, effective November 23, 2012.
34. All prior Income Withholding Orders entered in this case are VACATED. Father shall prepare and submit an Amended Income Withholding Order to this Court for entry within twenty-one (21) days of the entry of this Order setting forth Father’s new weekly child support obligation.
35. The Court finds that Father has met his burden under I.C. § 31-16-9-6 [sic] and demonstrated reasonable cause to believe that child support is not being used for the support of the Parties’ children and the Court hereby orders that Mother shall provide an accounting to the Court pursuant to I.C. § 31-16-9-6 [sic] upon the terms and conditions set forth herein.
37.(c.) Mother shall provide the foregoing documentation by the last day of each month following the month being reported; thus by way of example, for January 2013; Mother shall provide the foregoing required documentation by February 28, 2013.
(d.) Mother shall provide the accounting required by this Order for a period of nine (9) months, commencing with the date of the entry of this Order.
38. Father’s request for injunctive relief against Mother barring her from improperly utilizing child support funds set forth in the Petition is GRANTED as follows; Mother is hereby enjoined and restrained from using child support funds to pay any and all obligations or debts of Animal Hospital or [her real estate company], including the following: the Wells Fargo Loan and all monthly amounts paid by Animal Hospital to [her real estate company],
39. Father’s request for the imposition of a constructive trust upon child support funds paid by him set forth in the Petition is DENIED.

(App.22-24). Carrie filed her notice of appeal on December 10, 2012. On February 5, 2013, Carrie requested that the trial court stay its order of an accounting pending her appeal; the trial court denied her motion.

DECISION

Carrie claims that the trial court erred in: (1) ordering an accounting of future child support expenditures; and (2) modifying the child support James pays for the children. Specifically, she claims that the evidence presented did not support the conclusion that she misappropriated child support funds. She further argues that even assuming that the misuse of child support occurred, the remedy is not a reduction in child support.

Where the accounting and modification of child support is an issue and the trial court enters findings of fact and conclusions of law after holding a summary hearing, we apply the following two-tiered standard of review:

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. We will set aside the trial court’s findings only if they are clearly erroneous — that is, when a review of the record leaves us firmly convinced that a mistake has been made. Although we defer to a trial court court’s ability to find the facts, we do not defer to conclusions of law, and a judgment is clearly erroneous if it relies on an incorrect legal standard.

Mertz v. Mertz, 971 N.E.2d 189, 192 (Ind.Ct.App.2012). We address the issues of accounting of future child support payments and modification of child support separately.

1. Accounting of Future Child Support Expenditures

James contends that Carrie’s adjusted gross income of -$72,148 established that she had no income in 2011 and 2012 outside of the child support he paid. James further claims that the checks he submitted show that Carrie is spending child support funds on her business. Carrie, in turn, claimed in her deposition testimony that she started and subsidized her veterinarian practice with funds from a business loan and draws from a line of credit on her residence.

We will not reverse a trial court’s order for an accounting of future child support expenditures absent an abuse of discretion. Olive v. Olive, 650 N.E.2d 766 (Ind.Ct.App.1995). An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before it. Kovenock v. Mallus, 660 N.E.2d 638, 640 (Ind.Ct.App.1996), trans. denied.

“Quite commonly noncustodial parents request or even demand, that the custodial parent provide an accounting for how support money is spent.” Ind. Child Support Guideline 9. “The Indiana Legislature recognized that an accounting may sometimes be needed when it enacted [Ind.Code § 31-16-9-6].” Id. Indiana Code § 31 — 16— 9-6 states that:

At the time of entering an order for support or at any subsequent time, the court may order, upon a proper showing of necessity, the spouse or other person receiving support payments to provide an accounting to the court of future expenditures upon such terms and conditions as the court decrees.

(emphasis added).

A trial court may issue an order for an accounting “upon a showing of necessity.” Olive, 650 N.E.2d 766. However, when a child’s basic needs are being met, a “disagreement between the parties concerning whether adequate resources are being devoted to the [child’s] particular ‘wants’ as distinct from their actual needs is insufficient, by itself, to support a showing of necessity for an accounting.” Kovenock, 660 N.E.2d at 641.

In Kovenock, we addressed similar allegations regarding a custodial parent’s use of child support payments to cover expenditures that were not for the benefit of the children. In that case, the noncustodial parent “was concerned that child support payments were being used to subsidize a business and the living expenses of Wife and her present spouse.” Id. at 640. In addition, the noncustodial parent asserted that the children were not enjoying the same standard of living they would have enjoyed had the marriage not been dissolved. Id. The noncustodial parent claimed that the custodial parent, while reporting a household income of between $18,000 and $19,000, had traveled to Europe and purchased two vehicles since the dissolution of their marriage. Id. The noncustodial parent did not assert that the basic needs of the children were not being met. Id. Instead, he claimed that one child did not get “swimming lessons and that both children were sometimes dressed in ‘shabby’ clothes.” Id. at 641.

In that case, we noted that an accounting is a serious undertaking because of the “difficulties encountered in the allocation of costs attributable to items such as food, utilities, and mortgage payments along with the burden of keeping a record of all expenditures.” Id. “ ‘A custodial parent may be able to account for direct costs (clothing, school expenses, music lesson etc.) but it should be remembered that it is extremely difficult to compile indirect costs (a share of housing, transportation, utilities, food, etc.) with any degree of accuracy.’ ” Id. (quoting Olive, 650 N.E.2d at 767-68). For these reasons, the Committee’s commentary following Indiana Child Support Guideline 9 recommends that an accounting not be used routinely in child support orders. As a result, we held that when a child’s basic needs are being met, it is insufficient to show merely that there is a disagreement about whether sufficient resources are being spent on a child’s “wants” as opposed to actual needs. In other words, a party must be able to show evidence of impropriety, such as the misappropriation or dissipation of support payments, that negatively impacts the child’s basic needs. Id.

In this case, the trial court concluded that Carrie had no income, could not meet her monthly obligations in the manner she claimed, and that the evidence submitted showed that Carrie misused child support funds. Having reviewed the record before us, we cannot conclude the evidence and law supports the trial court’s conclusions.

First, we first note that the Child Support Guidelines do not support the trial court’s conclusion that Carrie had no earned income for 2011 except for child support paid by James. James relied on Carrie’s negative adjusted gross income on her tax return to support his claim of Carrie’s lack of income outside of child support. However, Child Support Guideline 3(A)(2) regarding the calculation of weekly gross income for self-employed parents, states the following:

Weekly Gross Income from self-employment, operation of a business, rent, and royalties is defined as gross receipts minus ordinary and necessary expenses. In general, these types of income and expenses from self-employment or operation of a business should be carefully reviewed to restrict the deductions to reasonable out of pocket expenditures necessary to produce income. These expenditures may include a reasonable yearly deduction for necessary capital expenditures. Weekly Gross Income from self-employment may differ from a determination of business income for tax purposes.

(Emphasis added). Carrie’s 2011 tax filing clearly shows that she had negative income for tax purposes. However, many of the business deductions claimed by Carrie would not be allowed when calculating her income for child support purposes. For example, Child Supp. G. 3(A)(2) would probably not allow Carrie to claim over thirty-five thousand dollars in depreciation or over fifty-four thousand dollars in unspecified “other expenses.” (James’s Exhibit A). Therefore, for child support purposes, the trial court erred in concluding that Carrie had no income outside of the child support she received.

Further, the evidence does not support the finding that Carrie cannot meet her obligations in the manner she claims. The trial court stated in its findings that the mortgage payment on Carrie’s business property was two thousand four hundred dollars ($2,400). During her deposition, Carrie estimated the amount of many of her monthly obligations, but she was not able to provide any amount for the mortgage on her business property. The only source in the record for this amount was James’s counsel during argument. In addition, Counsel’s argument during the hearing also appears to be the source of the total amount of funds which Carrie allegedly diverted to support her practice. The trial court found in its order that Carrie had diverted $17,698.12. James alleged that the total amount of misused child support was approximately $18,800. However, the total amount of challenged checks actually submitted into evidence by James totaled $11,470.92.

We note that arguments made by counsel are not evidence trial courts may consider when making factual determinations. In re K.H., 838 N.E.2d 477 (Ind.Ct.App.2005). Seeing no other evidence in the record, the trial court’s finding as to the amount supposedly misused by Carrie and her ability to meet her monthly obligations cannot stand.

Finally, considering our holding in Kovenock and the evidence in the record, the trial court erred in concluding that Carrie misused child support payments she received. As previously noted, James essentially admitted in his deposition, that his children’s basic needs are being met despite his allegation of Carrie’s malfeasance with child support funds. Notwithstanding this admission, the evidence he submitted does not support his claim of misappropriation. Carrie introduced into evidence bank statements corresponding with some of the challenged checks that James submitted into evidence. Those banks statements show large deposits into Carrie’s checking account in addition to what she received from James for child support. These deposits substantially exceed the checks offered by James to support his position that Carrie diverted child support funds. During argument, James’s counsel argued that the large deposits came from James reimbursing Carrie for extracurricular activities. However, James submitted no evidence to substantiate that claim. We acknowledge that Carrie’s deposition testimony is the only evidence that some of the excess funds are from her line of credit. However, James’s counsel conceded during argument that “[Carrie] has these credit facilities.” (Tr. 100). Id. While statements of counsel are not evidence, “[a] clear and unequivocal admission of fact by an attorney is a judicial admission which is binding on the client.” In re K.H., 838 N.E.2d at 480 (quoting Parker v. State, 676 N.E.2d 1083, 1086 (Ind.Ct.App.1997)). Hence, the trial court erred in finding that Carrie misappropriated child support funds.

Accordingly, having examined the record, the trial court’s findings are not supported by the evidence, and the findings do not support its conclusions. James did not meet his burden in showing a necessity for the accounting of future child support expenditures.

2. Modification of Child Support

James contends that Carrie’s opening a veterinarian practice and allegedly using child support funds to support her practice constitutes a substantial and continuing change that warranted reducing the amount of child support he pays. James further claims, assuming that a misuse of funds occurred, that because the standard of living of the children has not been affected, reducing the amount of the child support order is justified. We disagree.

Under Indiana Code § 31-16-8-1, an order for child support my be modified as follows:

Provisions of an order with respect to child support ... may be modified or revoked. Except as provided in section 2 of this chapter, modification may be made only:
(1) upon showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would ■ be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

Whether the asserted change in circumstances is substantial and continuing as to make the terms of a support order unreasonable is a mixed question of law and fact. Miller v. Sugden, 849 N.E.2d 758, 760 (Ind.Ct.App.2006), trans. denied. “To the extent it is a question of law, ‘it is the duty of the appellate court to give it de novo review — and doing so promotes the values of consistency, predictability, and enunciation of standards that curb arbitrariness.’ ” Id. at 761 (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938, 941 (Ind.2005)).

Typically, changes in parents’ income, emancipation, increase in educational expenses, and changes in custody of a child qualify as substantial and continuing circumstances that justify modifying a support order. See Borum v. Owens, 852 N.E.2d 966 (Ind.Ct.App.2006); Borth v. Borth, 806 N.E.2d 866 (Ind.Ct.App.2004); Rice v. Rice, 460 N.E.2d 1228, (Ind.Ct.App.1984). However, the question of whether misuse of funds by the custodial parent creates a substantial and continuing change is an issue of first impression not addressed by our court. Yet, we need not address it. Having just found that there was insufficient evidence to support a finding that child support had been misappropriated, the trial court’s modification of child support on that basis was also inappropriate.

We reverse and remand with instructions for the trial court to enter a new child support order consistent with this opinion and the Child Support Guidelines.

Reversed and remanded.

VAIDIK, J., concur.

KIRSCH, J., dissent. '

      . This amount was later amended to approximately $965.00 per week.

      . Prior to the 2009 amendments, the combined weekly adjusted income on the "Guideline Schedules for Weekly Support Payments” only included amounts up to four thousand dollars ($4,000.00) per week. If income for both parents exceeded $4,000.00 per week, the guidelines applied a formula that resulted in support orders that did not increase proportionately with an increase in income. The 2009 amendments set the maximum income on the schedule at ten thousand dollars ($10,-000.00) per week. For incomes above $10,000.00, a child support order would increase at a fixed percentage rate depending on the number of children.

      . Carrie also argues that de novo review is appropriate because the trial court held a summary hearing and "the Court of Appeals stands in the same position as the trial court in terms of assessing the written deposition testimony and evaluating the summary presentation by the lawyers." (Carrie's Br. 16). Though we find support for Carrie's position, (see Hunter v. Klimowicz, 867 N.E.2d 626, 628 (Ind.Ct.App.2007); Title Servs., LLC v. Womacks, 848 N.E.2d 1151, 1154 (Ind.Ct.App. 2006), trans. denied), we reach the same conclusion under the typical standard of review.

      . During argument, James’s counsel stated the following: “Dr. Carpenter has testified that her veterinary practice, Your Hometown Animal Hospital, LLC, pays approximately four thousand dollars a month to [her real estate company] for rent. [Her real estate company] then pays twenty-four hundred dollars a month toward a mortgage. The mortgage is against the business property.” (Tr. 30-31).

      . Both parties agreed to present evidence in a summary fashion. However, it is the summary nature of the hearing that lead both parties to make claims that were only substantiated by arguments and not evidence. While we understand the desire of the attorneys and the trial court for expediency and efficiency, these concerns must yield to the proper presentation and admission, not oral summation, of all evidence needed to arrive at the correct conclusion.