author: SHARPNACK, Senior Judge.

text:
    THINK TANK SOFTWARE DEVELOPMENT CORPORATION d/b/a Think Tank Networking Technologies Group and Think Tank Information Systems, Appellant-Plaintiff, v. CHESTER, INC., Mike Heinhold, John Mario, Joel Parker, Thomas Guelinas, Jon Meyer, Daniel Curry, Eric M. Wojciechowski, Michael Gee, Philip Ryan Turner and Carl Zuhl, Appellees-Defendants.
    No. 64A05-1205-PL-270.
    Court of Appeals of Indiana.
    May 7, 2013.

      Peter J. Rusthoven, Barnes & Thorn-burg LLP, Indianapolis, IN, Brian N. Custy, Merrillville, IN, Attorneys for Appellants.
    F. Joseph Jaskowiak, Lauren K. Kroe-ger, Hoeppner Wagner & Evans LLP, Merrillville, IN, Attorneys for Appellees.
   OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

In this interlocutory appeal, Think Tank Software Development Corporation d/b/a Think Tank Networking Technologies Group and Think Tank Information Systems (“Think Tank”) seeks review of the trial court’s grant of a motion to exclude testimony from its expert witness on economics and business valuation. The motion was filed by Chester, Inc., Mike Hei-nold, John Mario, Joel Parker, Thomas Guelinas, Jon Meyer, Daniel Curry, Eric M. Wojciechowski, Michael Gee, Philip Ryan Turner, and Carl Zuhl (collectively, “Chester”). We reverse and remand.

ISSUES

Think Tank raises two issues, which we restate as:

I. Whether the trial court abused its discretion by granting Chester’s motion to exclude Think Tank’s expert witness testimony.
II. Whether this Court’s prior decision in this case requires clarification on the subject of damages.

FACTS AND PROCEDURAL HISTORY

The relevant facts, as stated in the prior decision in this case, are as follows:

Think Tank is engaged in computer-related business activities, including systems and network engineering, problem solving, systems design, implementation, sales, client training, and computer maintenance. As of April 19, 2001, Think Tank employed defendants Mario, Parker, Guelinas, Meyer, Curry, Wojcie-chowski, Gee, Turner, and Zuhl (collectively, the former employees).
Think Tank required most, if not all, employees to sign employment agreements containing a covenant not to compete.
During a period ranging from April 20, 2001, to April 19, 2002, all of the former employees left Think Tank for various reasons, shrinking Think Tank’s staff from sixteen to nine employees. With the exception of Parker, all of the former employees went directly from Think Tank to Chester. [Parker worked for another employer for five months before going to work for Chester.] Chester was informed of the covenant not to compete by Curry, Gee, Guelinas, Wojciechowski, and Zuhl. However, Mario, Parker, Meyer, and Turner did not believe they had signed the covenant when they were hired by Think Tank, and Think Tank could not produce the signed agreements. Think Tank’s president asserts that each of these four signed the covenant in his presence.
On April 26, 2002, Think Tank filed its “Verified Complaint For Injunctive And Other Relief’ against Chester; Chester’s manager, Heinhold; and the former employees. Among other things, Think Tank alleged in its complaint that its former employees were violating the covenant not to compete by contacting Think Tank personnel and customers. Think Tank further alleged that Chester, Heinhold, and the former employees were interfering with Think Tank’s business by divulging confidential information and trade secrets. Three days later, after an ex parte emergency hearing, a Lake Superior Court granted a temporary restraining order finding that Think Tank had “a protectable interest in its goodwill (which includes all its customer information and relationships as well as its employees) and reputation.... ” The court further found that “the provisions of [the covenant] provide reasonable and appropriate restrictions on post-employment conduct of [Think Tank’s] employees; and that all defendants in concert with one another have either breached the [covenant] or induced or aided the breach....”
On May 1, 2002, the defendants filed for a change of venue, and the Lake Superior Court transferred the case to the Porter Superior Court on May 6, 2002. After a hearing on the defendants’ motion to dissolve the temporary restraining order, the trial court ruled on May 10, 2002, that the temporary restraining order was not properly issued because Think Tank failed to give proper notice pursuant to Indiana Rule of Trial Procedure 65(B)(2) and failed to post bond pursuant to Indiana Rule of Trial Procedure 65(C).
On June 7, 2002, Think Tank filed its “First Amended Verified Complaint For Injunctive And Other Relief.” In this amended complaint, Think Tank asserted breach of contract and tort claims against various defendants.
Think Tank did not pursue injunctive relief, and on August 24, 2004, the defendants moved to dismiss the case due to Think Tank’s lack of prosecution. The motion was denied and discovery continued until November 30, 2009. On December 31, 2009, the defendants filed a motion for summary judgment challenging Think Tank’s claims. On March 9, 2010, after holding a hearing and reviewing the designated evidence of all parties, the trial court granted the motion for summary judgment for the defendants on all of the claims raised by Think Tank in its first amended complaint. In doing so, the trial court concluded that the covenant not to compete in the various employment agreements “is overbroad and is therefore unenforceable ... and cannot be reformed.” The court also concluded that “the information alleged to have been misappropriated by [the defendants] does not constitute a ‘trade secret’ under the Indiana Trade Secret Act and therefore [Think Tank’s] claim for misappropriation fails as a matter of law.” The court further concluded as a matter of law that Think Tank’s claims for interference with a business relationship, unfair competition, and unjust enrichment “do not apply to the fact situation of this case.”

Think Tank Software Dev. Corp. v. Chester, Inc. (Think Tank I), No. 64A03-1003-PL-172 *1-3, 2011 WL 1362527 (Ind.Ct.App. Apr. 11, 2011) (footnotes and record citations omitted).

In concluding our opinion, we stated,

The trial court erred in granting summary judgment on the basis that the covenant not to compete was overbroad. The trial court also erred in granting summary judgment on the propriety of the confidentiality clause, as there are genuine issues of material fact that must be determined. Further, the trial court erred in granting summary judgment on the tortious interference with a contract issue. The trial court did not err in granting summary judgment on any of the remaining issues.
We affirm in part, reverse in part and remand for further proceedings consistent with this opinion. In doing so, we instruct the trial court to be mindful of the restrictions expressed in our discussion of Issues I, III and IV.

Id. at *16.

Implicit in Think Tank I, but not stated in its conclusion, is that the claim for misappropriation of trade secrets was included with the claims for breach of the covenant not to complete, for breach of the confidentiality clause, and for tortious interference with a contract that remained for trial after our review of the summary judgment rendered by the trial court. As we stated in footnote four to the opening of Issue II. Breach of Contract: Confidentiality Clause:

The defendants equate the confidentiality clause issue with the misappropriation of trade secrets issue as raised in the court below and as framed by the parties in their appellate briefs. We agree that the misappropriation of trade secrets issue is subsumed by the confidentiality clause issue. We will examine the validity of the confidentiality clause under the summary judgment standard of review, and our decision on this issue stands as a decision on the claim for misappropriation of trade secrets.

Id. at *7. We concluded, as to the confidentiality clause,

[T]here is a genuine issue of material fact that prevents the grant of summary judgment on this issue. The fact finder must determine whether the items contained in the confidentiality clause are trade secrets that may be protected. If they are not, then Think Tank has not asserted that the covenant to not compete asserts a legitimate interest that may be protected and/or that the former employees have gained a unique competitive advantage or ability to harm Think Tank.

Id. at *9. We also necessarily found that the same issue existed as to the claim for misappropriation of trade secrets.

In the course of our opinion, we noted that Think Tank had submitted a report by its economics expert, Benjamin S. Wil-ner. We stated as follows with respect to Wilner’s report:

In an apparent attempt to create a genuine issue of material fact pertaining to customers in addition to the nine referred to above,[] Think Tank points to a report prepared by a third party that lists the customers it lost in the years following the former employees’ transfer to Chester, and it proposes that some of these losses could be attributable to breach of covenants. The supposed losses that “could be attributable to breach” compose the entire result of seven years of discovery. In an industry where even Think Tank’s third party expert documents that Think Tank normally retains customers for an average of only 2.3 years, we cannot view the report as anything but speculative. In short, the report says little more than that even though Think Tank lost almost all of its key employees and it normally loses a percentage of its customers each year, Think Tank guesses that some of the lost customers must be attributable to the defendants’ actions. Mere speculation cannot create genuine issues of material fact to defeat summary judgment. See Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.Ct.App.2008) (holding that mere speculation, guesses, supposition, and conjecture “are not sufficient to create a genuine issue of material fact to defeat summary judgment”), trans. denied.

Id. at *12.

While the appeal was pending, Wilner had produced a second report, entitled a “Supplementary Expert Report,” examining sales information that Chester had provided. Appellant’s Supp. App. p. 301. After we issued Think Tank I, Wilner issued a third report, entitled a “Rebuttal Expert Report.” Appellant’s App. p. 158. Next, Chester moved the court to exclude Wilner’s testimony from trial. Think Tank filed a response, and Chester filed a reply. The trial court initially scheduled a hearing on Chester’s motion. However, the court ultimately granted the motion without a hearing, quoting the above paragraph from this Court’s opinion in Think Tank I and concluding that Wilner’s testimony would be inadmissible at trial. Next, the court granted Think Tank permission to pursue a discretionary interlocutory appeal. The parties jointly asked this Court to accept this appeal, and the motions panel granted the parties’ request.

DISCUSSION AND DECISION

I. EXCLUSION OF EXPERT ECONOMICS TESTIMONY

Think Tank argues that nothing in this Court’s decision in Think Tank I rendered Wilner’s testimony inadmissible, so the trial court should not have excluded it. Chester responds that the trial court properly excluded Wilner’s testimony because it did not, in Chester’s opinion, comply with the requirements for expert opinion evidence under Indiana Evidence Rule 702.

A trial court’s determination regarding the admissibility of expert testimony is a matter within its broad discretion and will be reversed only for abuse of that discretion. Bennett v. Richmond, 960 N.E.2d 782, 786 (Ind.2012). An abuse of discretion occurs if the court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court has misinterpreted the law. Bridgestone Ams. Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 (Ind.2007).

We start with Think Tank’s argument regarding the doctrine of law of the case. Pursuant to that doctrine, an appellate court’s determination of a legal issue is binding on the trial court and this court in any subsequent appeal in the same case and involving the same facts. Dean V. Kruse Found. v. Gates, 973 N.E.2d 583, 590 (Ind.Ct.App.2012), trans. denied. The purpose of the doctrine is to minimize unnecessary relitigation of legal issues once they have been resolved by an appellate court. Id. To invoke this doctrine, the matters decided in the earlier appeal must clearly appear to be the only possible construction of an opinion. Id. Questions not conclusively decided in the earlier appeal do not become law of the case. In re Guardianship of Stalker, 953 N.E.2d 1094, 1102 (Ind.Ct.App.2011). Furthermore, unlike the related doctrine of res judicata, the doctrine of law of the case is not a uniform rule of law but rather a discretionary rule of practice. State v. Lewis, 543 N.E.2d 1116, 1118 (Ind.1989).

Here, we stated as follows in Think Tank I with respect to Wilner’s report:

In an apparent attempt to create a genuine issue of material fact pertaining to customers in addition to the nine referred to above, Think Tank points to a report prepared by a third party that lists the customers it lost in the years following the former employees’ transfer to Chester, and it proposes that some of these losses could be attributable to breach of covenants. The supposed losses that “could be attributable to breach” compose the entire result of seven years of discovery. In an industry where even Think Tank’s third party expert documents that Think Tank normally retains customers for an average of only 2.3 years, we cannot view the report as anything but speculative. In shori, the repori says little more than that even though Think Tank lost almost all of its key employees and it normally loses a percentage of its customers each year, Think Tank guesses that some of the lost customers must be attributable to the defendants’ actions. Mere speculation cannot create genuine issues of material fact to defeat summary judgment. See Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.Ct.App.2008) (holding that mere speculation, guesses, supposition, and conjecture “are not sufficient to create a genuine issue of material fact to defeat summary judgment”), trans. denied.

Think Tank I, No. 64A03-1003-PL-172, at *12 (emphasis added).

Thus, the context of our discussion of Wilner’s report in Think Tank I was whether it established causation for the loss of some of Think Tank’s customers, and we concluded that the report did not give rise to a dispute of material fact on that point.

After remand, Wilner prepared a third report, the Rebuttal Expert Report. Rather than address the loss of some of Think Tank’s customers as he did in his first and second reports, Wilner’s third report focused upon damages that he concluded Think Tank sustained due to the loss of four specific customers identified in Think Tank I, in addition to general profit erosion caused by the defection of Think Tank’s former employees to Chester. Thus, Wilner’s third report, and his proposed testimony at trial, addresses questions not conclusively decided in the earlier appeal. As a result, we conclude that the doctrine of law of the case does not bar the admission of Wilner’s testimony at trial. See Gates, 973 N.E.2d at 591 (determining that law of the case did not bar the court’s consideration of whether forfeited earnest money constitutes liquidated damages or a penalty because that issue was not expressly decided in the prior appeal).

Next, we turn to whether Wilner’s expert testimony is admissible under Indiana Evidence Rule 702. As a preliminary matter, Chester argues that Think Tank is barred from addressing Rule 702 in this appeal because Think Tank did not discuss that rule in its initial appellate brief. We disagree. Chester presented argument under Rule 702 in its Appellees’ Brief, and Think Tank properly responded to Chester’s argument in its Reply Brief. See Ind. Appellate Rule 46(C) (“The appellant may file a reply brief responding to the appellee’s argument.”). Furthermore, the parties extensively briefed the applicability of Evidence Rule 702 during trial court proceedings, so we are considering an issue that was presented to the trial court.

Rule 702 provides:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

In this case, both Wilner’s qualifications as an expert and the reliability of the scientific principles upon which his testimony rests are in dispute.

A. WILNER’S QUALIFICATIONS

Chester argues that Wilner is not qualified to render an opinion on causation. The trial court is considered the gatekeeper for the admissibility of expert opinion evidence under Rule 702(a) and (b). Person v. Shipley, 962 N.E.2d 1192, 1194 (Ind.2012). Indiana Evidence Rule 702(a) requires that an expert be qualified as such by evidence of knowledge, skill, experience, training, or education. State Auto. Ins. Co. v. DMY Realty Co., 977 N.E.2d 411, 423 (Ind.Ct.App.2012). Therefore, before an expert may testify about a subject, the proponent of the expert must show that the expert is competent in that subject. Id. In addition, the proponent of expert testimony must show that the subject matter is distinctly related to some scientific field, business, or profession beyond the knowledge of the average layperson. Jackson v. Trancik, 953 N.E.2d 1087, 1092 (Ind.Ct.App.2011).

Here, Wilner’s curriculum vitae indicates that he has a Ph.D. in “Managerial Economics and Decision Science.” Appellant’s App. p. 168. In addition, he has over fifteen years of professional experience, including work as a professor of finance, as an economist, and as a professional expert in business valuation, statistics, and financial damages, among other areas. Wilner has also published articles on economic and business matters and has given presentations to federal agencies, universities, and professional organizations on business valuation and other economic issues. His knowledge of economics and business valuation is beyond the knowledge of the average layperson. Therefore, Wilner’s extensive education, training, and experience qualify him as an expert witness with respect to economics and business valuation matters. See Jackson, 958 N.E.2d at 1092 (determining that a witness was qualified as an expert in medical billing matters based on her experience, training, and education in her field).

B. RELIABILITY OF SCIENTIFIC PRINCIPLES

The parties disagree as to whether Wilner’s expert opinions are based on reliable scientific principles pursuant to Evidence Rule 702(b). The court must make a preliminary assessment of whether the reasoning or methodology underlying an expert’s testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue. Person, 962 N.E.2d at 1196. As part of this process, Rule 702(b) directs the trial court to consider the underlying reliability of the general principles involved in the subject matter of the testimony, but it does not require the court to reevaluate and micromanage each subsidiary element of an expert’s testimony within the subject. Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 103 (Ind.Ct.App.2005), trans. denied. The proponent of expert testimony bears the burden of establishing the reliability of the scientific principles upon which the testimony is based. Turner v. State, 953 N.E.2d 1039, 1049 (Ind.2011).

There is no specific test for determining whether expert scientific testimony satisfies Rule 702(b). Franciose v. Jones, 907 N.E.2d 139, 146 (Ind.Ct.App.2009), trans. denied. Federal courts have adopted the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Indiana courts are not bound by Daubert when analyzing evidence under Indiana Evidence Rule 702(b), but we find the principles stated in that case to be helpful. Turner, 953 N.E.2d at 1050. Thus, in determining whether evidence is admissible under Rule 702(b), we may consider whether the theory or technique can be and has been tested, whether the theory has been subjected to peer review and publication, whether there is a known or potential error rate, and whether the theory has been generally accepted within the relevant field of study. Id. at 1048 (citing Daubert, 509 U.S. at 593-94, 113 S.Ct.2786). The focus of the admissibility test is on the methodology of the theory or technique, not on the conclusions generated. Miller v. Bernard, 957 N.E.2d 685, 693 (Ind.Ct.App.2011). Furthermore, our Supreme Court’s adoption of Rule 702 reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific evidence. Turner, 953 N.E.2d at 1050.

In this case, after this Court issued Think Tank I, Wilner produced the Rebuttal Expert Report referenced above. He reviewed numerous documents provided by Think Tank and Chester and spoke with Think Tank’s president and counsel in the course of preparing his report. In the report, Wilner calculated Think Tank’s damages in two categories: lost sales to four specific customers and general profit erosion caused by the defection of Think Tank’s former employees. He explained the basis for his calculations, identified the assumptions underlying his calculations, and the reasons why he compared certain data. He also took into account other potential causes for Think Tank’s losses, calculating the effect of a 2002 “inventory adjustment” that was unrelated to Chester’s actions. Appellant’s App. p. 159. Wilner indicated that his overall methodology was based on “the benchmark method” as described in a publication from the American Institute of Certified Public Accountants captioned “Calculating Lost Profits.” Id. at 163; Appellant’s Supp. App. p. 458. Chester’s economics expert agreed that the benchmark method is a generally-accepted tool for calculating damages and has used the method himself. Appellant’s Supp. App. p. 426. In a deposition, Wilner also characterized his work as “an event study,” which he asserted is “standard in economics and finance.” Ap-pellees’ App. p. 73.

In addition, Wilner used the “yardstick approach” to calculate general profit erosion. Appellees’ App. p. 84. This method of damage calculation is “well accepted.” Fishman v. Estate of Wirtz, 807 F.2d 520, 551 (7th Cir.1986); see also Appellant’s Supp. App. pp. 376, 390, 404 (presentations from accounting conferences describing the yardstick method as one of several accepted methods for calculating damages). Thus, Wilner’s conclusions are based on scientifically valid, reliable theories within the field of economics. Consequently, to the extent the trial court’s ruling rests on Indiana Evidence Rule 702(b), we conclude that the trial court overstepped its gatekeeper role and abused its discretion by excluding Wilner’s testimony. See Miller, 957 N.E.2d at 694-95 (determining that the court erred by excluding an expert witness’s testimony because any failure by the expert to consider all of the relevant facts went to the weight of the expert’s opinion, not its admissibility).

Many of Chester’s objections to Wilner’s opinions as stated in the rebuttal report are, in essence, claims that Wilner failed to express an opinion on causation. For example, Chester asserts that Wilner “fail[ed] to identify the profit erosion caused by unlawful activity” and “simply assumed that Chester’s sales to these customers would equal Think Tank’s lost sales.” Appellees’ Br. pp. 35, 39. However, Think Tank is not obligated to prove every element of its claims through expert opinion. Indeed, Wilner stated in his deposition that his rebuttal report was limited to the question of damages, and Think Tank concedes, “Wilner has not opined on causation.” Appellant’s Reply Br. p. 19. To the extent that the finder of fact concludes that Wilner’s testimony fails to establish the causation element of Think Tank’s claims, Think Tank will have to prove causation through other evidence, or its claims will fail and Wilner’s expert opinion on damages will be pointless. See Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177, 630 S.E.2d 304, 312 (2006) (reversing verdict for plaintiff where the plaintiffs expert provided evidence as to damages, but plaintiff failed to otherwise demonstrate proximate causation between the defendants’ conduct and claimed damages).

Chester further argues that Wil-ner’s opinion is flawed because Wilner based his understanding of the facts solely upon conversations with Think Tank’s president. However, it is undisputed that Wilner reviewed numerous documents provided by Think Tank and Chester in the course of preparing his rebuttal report. Furthermore, Wilner said in his deposition that he learned the facts of the case from “the record and [Think Tank’s president].” Appellees’ App. p. 82. Thus, Wilner’s opinion is not based solely upon what Think Tank told him. Chester further argues that Wilner ignored information, erroneously changed his analytical model between issuing his first report and his rebuttal report, made flawed assumptions in evaluating lost sales for the four customers, and failed to independently investigate the case. These points go to the credibility and weight to be given to Wil-ner’s testimony at trial. Once an expert’s scientific theories are determined to be reliable under Rule 702, the crucible of cross-examination is the means of exposing dissimilarities between the actual evidence and an expert’s scientific theories. Turner, 953 N.E.2d at 1051.

For the reasons stated above, the trial court’s ruling that Wilner’s testimony is inadmissible at trial is reversed.

II. CLARIFICATION OF THINK TANK I’S HOLDING ON DAMAGES

Think Tank contends that Think Tank I requires clarification as to whether all four of its surviving claims have limits as to damages. Chester responds that Think Tank should have sought clarification by filing a petition for rehearing or a petition for transfer, and the deadlines for those petitions have expired.

This case is already over a decade old, having been originally filed in Lake County in 2002. Furthermore, the case is being prepared for trial, and clarification of damages will facilitate a swifter final judgment. Finally, the parties currently dispute the extent of the ruling in Think Tank I, because Chester argues in this appeal that Think Tank is barred by the holding in Think Tank I from presenting a claim for damages resulting from profit erosion. Consequently, we will address the issue.

Stated simply, four of Think Tank’s claims survived summary judgment: breach of a covenant not to compete, breach of a covenant of confidentiality, misappropriation of trade secrets, and tor-tious interference with contract. In Think Tank I, we noted, “The proper measure of damages for breach of a covenant is the plaintiffs lost net profits.” No. 64A03-1003-PL-172, at *9. Next, we concluded that Think Tank had established a dispute of material fact as to lost profits arising from Chester’s relationship with four specific customers. Consequently, we limited the damages for Think Tank’s claim for breach of the covenant not to compete to lost profits in relation to those four customers. This holding also applies to Think Tank’s claim for breach of a covenant of confidentiality. Similarly, with respect to Think Tank’s claim for tortious interference with contract, we determined that the claim only survived summary judgment as to the same four customers. Id. at *14. It stands to reason that Think Tank’s damages for misappropriation of trade secrets is also limited to those four customers. However, we said nothing about any measure of damages for tortious interference with contract or for misappropriation of trade secrets. Nothing in Think Tank I should be understood to limit or define damages under those two claims.

Finally, to the extent that Wilner’s profit erosion analysis is based solely on the departure from Think Tank of the defendant employees and their subsequent employment by Chester, the analysis may be inadmissible because the defendant employees were free to leave and become employees elsewhere. They committed no wrong, contractually or otherwise, against Think Tank merely by leaving.

CONCLUSION

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BAILEY, J., and DARDEN, S.J., concur.

      . Chester has filed a Motion to Strike. We deny the motion by separate order.

      . In the first appeal, Think Tank identified nine customers as to which it claimed there was a genuine issue of material fact regarding loss of net profits. We concluded that such an issue existed only as to four of them: Braun Corporation, Lowell Public Library, Weil-McClain, and Methodist Hospital.

      . The appealed order is ambiguous as to whether the trial court based it on the quoted portion of Think Tank I or on 702 principles, although it did recite: “The Court, having reviewed the Motions and Memorandum [sic] of the parties, now grants the motion to exclude the evidence of Doctor Wilner.” Appellant's App. p. 103.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    Charles A. WALKER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 46A04-1210-PC-519.
    Court of Appeals of Indiana.
    May 22, 2013.

      Stephen T. Owens, Public Defender of Indiana, William D. Polansky, Deputy-Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

Charles Walker appeals the denial of his petition for post-conviction relief. He claims that his trial and appellate counsel provided ineffective assistance in failing to challenge the sufficiency of evidence to support a habitual offender finding against him and in failing to challenge the habitual offender jury instructions and verdict form. Finding no clear error in the post-conviction court’s judgment, we affirm.

Facts and Procedural History

The facts as summarized in an unpublished memorandum decision on Walker’s direct appeal are as follows:

On November 29, 2005, Russell Folino received a telephone call from the Franklin Bar and Grill (the bar) in La-Porte County indicating that he had won a raffle prize of $730. Folino was a regular at the bar. His girlfriend drove him there around 6:00 that evening, and he collected his winnings in open view. There were roughly thirty or forty people in the bar that Tuesday evening. Folino placed all but about $100 of the money in his wallet, which he kept in his back pocket. With the remaining money, Folino began buying drinks for himself and his friends. Folino, who was very joyous about his winnings, was warned by the bartender and a friend to be more careful with the money.
Walker arrived at the bar alone around 7:00. While inside the bar, he wore a large winter jacket with a fur-[tjrimmed hood. Walker roamed the bar but at times was in close proximity to Folino. Timothy Malott, a friend of Folino’s, became nervous when Walker moved in close and “seemed to be eyeballing [Folino’s] wallet.” Malott nudged Folino and warned, “Hey, man, be cool with that wallet open. We don’t know all these people.” Folino agreed and put his wallet back in his pocket.
Around 7:30, Folino went into the empty men’s restroom, followed soon by Walker. As Folino was at the urinal, a man entered and struck him in the head multiple times from behind. The heavy blows caused Folino to collapse to one knee. Folino pushed the man against the sink, and then the man fell on top of Folino. As the two struggled on the ground, the man reached “straight for [Folino’s] back pocket” and took his wallet. The man then kicked Folino and ran out the bathroom door. Folino could not identify his attacker. Folino, however, indicated that the man wore a big parka with “fur edging” around the hood, which was pulled down over his face.
Others in the bar heard the commotion coming from inside the bathroom. Soon thereafter, Walker ran out of the bathroom and out of the bar, knocking down chairs along his way. He was wearing his coat with the hood up. Mal-ott testified that he could “definitely” tell it was Walker who ran by him and out of the bar. Folino exited the bathroom disoriented and badly beaten. He exclaimed, “That guy just stole my wallet.”
About two weeks later, Walker was arrested and he voluntarily gave a statement to a detective. Walker admitted being at the bar on the night in question. Walker stated that he was using the bathroom when an intoxicated Foli-no walked in and proceeded to accidentally urinate on Walker’s shoe. Walker alleged that Folino then directed a racial slur at him. As a result, Walker admittedly struck Folino at least twice in the face, causing Folino to fall to the ground. Walker, however, denied robbing Folino and explained that when the incident was overt,] he (Walker) simply walked out of the bathroom and exited the bar. Following a jury trial, Walker was convicted of robbing Folino. He was also adjudicated a habitual offender.

Walker v. State, No. 46A05-0612-CR-717, 2007 WL 2405067 (Ind.Ct.App. Aug. 24, 2007) (citations omitted).

During the habitual offender phase of Walker’s trial, the State introduced exhibits containing dockets and abstracts of judgment concerning the following prior felony offenses: a 1980 robbery conviction, a 1989 burglary conviction, and two 1995 cocaine dealing convictions. Law enforcement witnesses testified concerning their investigations of and interactions with Walker at the time of his 1980 and 1989 convictions. The trial court subsequently sentenced Walker to twenty years for the robbery conviction, plus twenty years on the habitual offender count.

Walker appealed, challenging the sufficiency of the evidence supporting the robbery conviction and the appropriateness of his forty-year sentence. Another panel of this Court affirmed his conviction and sentence. He subsequently filed a petition for post-conviction relief, claiming that he received ineffective assistance from both trial and appellate counsel. Following a hearing, the post-conviction court concluded that he failed to establish that either trial or appellate counsel rendered ineffective assistance and denied his petition. He now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Walker contends that the post-conviction court erred in denying his petition for postconviction relief. The petitioner in a post-conviction proceeding “has the burden of establishing grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5); Brown v. State, 880 N.E.2d 1226, 1229 (Ind.Ct.App.2008), trans. denied. When issuing its decision to grant or deny relief, the post-conviction court must make findings of fact and conclusions of law. Ind. Post-Conviction Rule 1(6). A petitioner who appeals the denial of his post-conviction petition faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind.App.2011). In conducting our review, we neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. “A post-conviction court’s findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made.” Brown, 880 N.E.2d at 1230 (citation and quotation marks omitted). In other words, if a post-conviction petitioner was denied relief in the proceedings below, he must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the one reached by the post-conviction court. Massey, 955 N.E.2d at 253.

In his post-conviction petition, Walker alleged that he received ineffective assistance of counsel. To prevail on an ineffective assistance claim, he must satisfy two components. Id. He must demonstrate both deficient performance and prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is “representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Brown, 880 N.E.2d at 1230. We assess counsel’s performance based on facts that are known at the time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind.Ct.App.2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad tactics will not support an ineffective assistance claim; instead, we evaluate counsel’s performance as a whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind.Ct.App.2011), trans. denied (2012). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind.2007). Prejudice occurs when a reasonable probability exists that, “but for counsel’s errors the result of the proceeding would have been different.” Brown, 880 N.E.2d at 1230. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mitchell v. State, 946 N.E.2d 640, 643 (Ind.Ct.App.2011), trans. denied. We can dispose of claims upon failure of either component. Brown, 880 N.E.2d at 1230.

I. Trial Counsel

A. Identity and Sequence of Predicate Offenses

Walker first claims that his trial counsel provided ineffective assistance in failing to challenge the sufficiency of evidence to support the habitual offender finding via a motion for directed verdict. To, establish that Walker is a habitual offender, the State was required to prove beyond a reasonable doubt that he had been previously convicted of two separate and unrelated felonies. Ind.Code § 35-50-2-8. To be “unrelated,” the defendant must have committed the second felony after being sentenced for the first and must have been sentenced for the second felony prior to committing the current felony for which the enhanced sentence was sought. Ind.Code § 35-50-2-8(c); Lewis v. State, 769 N.E.2d 243, 246 (Ind.Ct.App.2002), trans. denied. Walker asserts that the evidence was insufficient to establish (1) his identity; and (2) the sequence of the predicate offenses. The post-conviction court concluded that Walker’s 1994 felony cocaine offenses were statutorily ineligible to be used as predicate offenses under the habitual offender statute. Ind. Code § 35-50 — 2—8(d)(3). Thus, we limit our discussion to his 1980 robbery conviction and the 1989 burglary conviction.

With respect to identity, we note that

[Certified copies of judgments or commitments containing the same or similar name as the defendant may be introduced to prove the commission of prior felonies, [but] there must be other supporting evidence to identify defendant as the same person named in the documents. This proof of identity may be in the form of circumstantial evidence. A sufficient connection between the documents and the defendant is made if the evidence yields logical and reasonable inferences from which the trier of fact may determine it was indeed the defendant who was convicted of the two felonies alleged.

Baxter v. State, 522 N.E.2d 362, 365 (Ind.1988).

Here, the State introduced Exhibits 28 (the certified docket and sentencing transcript from Walker’s 1980 robbery case) and 29 (the certified docket and abstract of judgment from Walker’s 1989 burglary case) in support of the habitual offender count against Walker. In addition, the State presented supporting testimony concerning Walker’s identity as the perpetrator in both cases. Michigan City Police Detective Louis Jacobucci testified that he had investigated the 1980 robbery case and identified Walker both physically and by cause number as the same Charles A. Walker convicted of that robbery. Trial Tr. at 240-41. Probation officer Shirley Griffin testified concerning Walker’s identity as the Charles Walker who committed the 1989 burglary. She affirmed that she worked with him when he was placed on probation after completing his incarceration for his 1989 class B felony burglary conviction. Id. at 243. She then identified him in court. Id. at 244.

At the post-conviction hearing, Walker’s trial counsel testified that he believed the evidence was sufficient to tie Walker to the predicate offenses. PCR Tr. at 15. We agree and conclude that the State made a sufficient connection between the documents and Walker to yield logical and reasonable inferences from which the trier of fact determined that it was indeed Walker who was convicted of the two felonies alleged. Thus, we conclude that Walker’s trial counsel was not ineffective in this respect.

Walker also asserts that the State failed to present documentary evidence establishing the proper sequencing of the predicate offenses and that his trial counsel rendered deficient performance in failing to request a directed verdict on that basis. The habitual offender information alleges in pertinent part with respect to the predicate offenses,

1. On or about February 8, 1980, CHARLES ALLEN WALKER, committed the felony offense of Robbery, for which the Defendant was charged under cause number 4949 before the LaPorte Superior Court No. 1 at Michigan City, Indiana, and for which the Defendant was convicted and subsequently sentenced on or about August 1, 1980, to a determinate period of twelve (12) years in the Indiana Department of Corrections; and
2. On or about the [sic] March 24, 1989, CHARLES ALLEN WALKER committed the felony offense of Burglary, for which the Defendant was charged under cause number 46D01-8903-CF-027 before the LaPorte Superior Court No. 1 at Michigan City, Indiana, and for which the Defendant was convicted and sentenced on or about July 28,1989, to a determinate period of seven (7) years in the Indiana Department of Correction^]

Appellant’s Dir. Appeal App. at 16 (emphases added).

The sequence of the predicate offenses is paramount when making a habitual offender determination. Thus, Walker must have committed the burglary after he was sentenced for the robbery and must have been sentenced for the burglary before he committed the instant felony offense. Ind.Code § 35-50-2-8(c). The crux of Walker’s argument concerning sequencing is that the State never established the commission date for the 1989 burglary because the State never introduced the charging information for that offense. The State introduced the docket and the abstract of judgment as evidence of Walker’s 1989 burglary, but neither document lists a commission date for that offense. Instead, State’s Exhibits 29A and 29C establish only a charging date (March 31,1989), a conviction date (June 30,1989), and a sentencing date (July 28, 1989). Thus, the only document containing the commission date was the document that the State neglected to offer.

Walker now claims that his trial counsel performed deficiently in failing to request a directed verdict. We agree. However, even if defense counsel had requested a directed verdict, the State simply could have requested that the trial court exercise its discretion and grant permission to reopen the case to introduce the 1989 charging information. Ford v. State, 523 N.E.2d 742, 745 (Ind.1988). In Ford, our supreme court held that the trial court acted within its discretion in granting the State’s request to reopen the habitual offender case to introduce certified records concerning a predicate felony conviction that had been referenced by a State’s witness during its case in chief. Id. at 746. The Ford court reasoned that “a trial is not a game of technicalities, but one in which the facts and truth are sought.” Id. In short, even if Walker’s trial counsel had requested a directed verdict, the State could have offered the missing document. Thus, it is not reasonably probable that Walker would have received a different outcome on the habitual offender count. Based on the foregoing, we conclude that Walker was not prejudiced by his trial counsel’s failure to request a directed verdict on the habitual offender count.

B. Jury Instructions

Walker also claims that his trial counsel was ineffective in failing to object to the jury instructions regarding the habitual offender finding. “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law of the case.” Flake v. State, 767 N.E.2d 1004, 1007 (Ind.Ct.App.2002).

Here, the challenged instructions state,

The status of Habitual Offender is defined by statute as follows: The State may seek to have a person sentenced as an Habitual Offender for any felony by proving that the person has accumulated two prior unrelated felony convictions. To convict the Defendant, the State must prove that the Defendant accumulated at least two prior unrelated felony convictions as follows: The Defendant (1) was convicted of a felony, to wit, Robbery, on August 1, 1980; (2) [w]as convicted of a felony, to wit, Burglary, on July 28,1989; (3) [w]as convicted of a felony, to wit, Dealing in Cocaine as a B felony and Dealing in Cocaine as a[n] A felony, on July 20, 1995; and thereafter was convicted of the crime charged in Phase 1 of this case.
If the State failed to prove that the Defendant had accumulated two prior unrelated felony convictions, beyond a reasonable doubt, you must not find the Defendant to be an Habitual Offender. If the State did prove beyond a reasonable doubt that the Defendant has accumulated two prior unrelated felony convictions, you may find the Defendant to be an Habitual Offender.
The Defendant must have committed the first felony and have been sentenced for it before he commits and is sentenced for the second felony, and the second felony must have preceded the commission of the offenses for which the Defendant was found guilty in the first part of this trial to support a habitual offender determination.

PC Ex. 5 (emphasis added).

Walker argues that based on the portion of the instructions highlighted above, the jury could have concluded that he was a habitual offender without making any determination regarding the proper sequence of the predicate offenses. We disagree and conclude that these instructions, taken together, provide an accurate statement of the law with respect to a habitual offender finding. The last portion of the instructions listed above addresses the statutory sequencing requirements and thus explains more specifically what it means for two prior felony convictions to be “unrelated.” Thus, Walker’s trial counsel did not render deficient performance by failing to object to the jury instructions concerning the habitual offender determination.

C. Verdict Form

Walker also asserts that trial counsel provided ineffective assistance by failing to object to the habitual offender verdict form. The challenged form states,

SPECIFIC FINDINGS
We, the Jury, find that the Defendant Charles A. Walker, has the following prior felony convictions:

1.Robbery

August 1,1980 _ Yes _ No

2.Burglary

July 28,1989 _ Yes _ No

3. Dealing in Cocaine

A felony

Dealing in Cocaine

B felony

July 20,1995 Yes No

4. Robbery

Phase I of this trial Yes No

VERDICT

We, the Jury, find that the defendant

_is

_is not

an habitual offender.

Dated this_day of July, 2006.

Appellant’s Dir. Appeal App. at 19.

Walker claims that the verdict form was deficient because it did not explicitly show that the jury found the proper sequence of the predicate offenses. This argument was considered and rejected in Seay v. State, 698 N.E.2d 732 (Ind.1998), and Parks v. State, 921 N.E.2d 826, 833-34 (Ind.Ct.App.2010), trans. denied. Although the jury may be requested to make specific findings to preserve the validity of the habitual offender enhancement in the event a predicate felony is later overturned, “there is no requirement that the verdict form specify all the necessary findings.” Id. at 834. As previously discussed, the trial court verbally instructed the jury that Walker’s predicate offenses must have occurred in the proper sequence in order to adjudicate him a habitual offender. The verdict form specifically required the jury to check whether they did or did not find Walker to be a habitual offender, a determination that by definition incorporates the sequencing of the predicate offenses. We presume that the jury followed the instructions it was given. Tormoehlen v. State, 848 N.E.2d 326, 332 (Ind.Ct.App.2006), trans. denied. As such, we find no deficiency in trial counsel’s performance in failing to object to the verdict form.

II. Appellate Counsel

Walker also contends that his appellate counsel provided ineffective assistance. The standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel. Lowery v. State, 640 N.E.2d 1031, 1048 (Ind.1994) cert. denied (1995). The petitioner must establish deficient performance by appellate counsel resulting in prejudice. Id. “Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure to present issues well.” Henley v. State, 881 N.E.2d 639, 644 (Ind.2008). “[T]he decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind.2006). In evaluating whether appellate counsel performed deficiently by failing to raise an issue on appeal, we apply the following test: (1) whether the unraised issue is significant and obvious from the face of the record and (2) whether the unraised issue is “clearly stronger” than the raised issues. Henley, 881 N.E.2d at 645. For countless years, experienced advocates have “emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind.1997) cert. denied (1998) (citation and quotation marks omitted). Thus, when reviewing these types of claims, we should be particularly deferential to appellate counsel’s strategic decision to exclude certain issues in favor of other issues more likely to result in a reversal. Id. As a result, “ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal.” Reed, 856 N.E.2d at 1196.

Walker claims that his appellate counsel was ineffective in failing to raise the same habitual offender issues that formed the basis for the claims against his trial counsel, i.e., insufficient evidence concerning identity and sequence, improper jury instruction, and improper verdict form. On direct appeal, appellate counsel raised two issues: the sufficiency of evidence supporting Walker’s robbery conviction and the appropriateness of his forty-year sentence. Appellate counsel did not testify at the post-conviction hearing because he was deceased. Thus, it is difficult to determine why appellate counsel may have raised those issues instead of issues concerning Walker’s habitual offender designation. Consequently, we look for guidance in the post-conviction exhibits pertaining to Walker’s direct appeal.

Petitioner’s Exhibits 2 and 3 (the memorandum decision in Walker’s direct appeal and his appellant’s brief on appeal) indicate that appellate counsel did request that this Court vacate the habitual offender finding. He did so in conjunction with his appropriateness of sentence claim, specifically challenging the trial court’s statement in the sentencing order that Walker’s robbery and habitual offender “sentences will run consecutively.” Petitioner’s Ex. 3 at 11, 13. This Court addressed Walker’s argument and found that notwithstanding the trial court’s incorrect terminology, this “technical error” did not warrant vacating the habitual offender adjudication. Walker, slip op. at 6 n. 4.

Moreover, the record in Walker’s direct appeal contains a bond reduction investigation report and a presentence investigation report. Appellant’s App. at 34, 38. Both documents list Walker’s numerous convictions spanning his entire adult life, including not only the predicate offenses that served as the basis of his habitual offender finding, but also other felony and misdemeanor offenses. Because appellate counsel chose to raise appropriateness of Walker’s sentence as an issue, he had to become familiar -with Walker’s criminal history. What appellate counsel saw was an extensive record with more felony convictions than necessary to support a habitual offender finding. Thus, even though State’s Exhibit 29 did not mention a commission date for the 1989 burglary, this omission was not significant and obvious from the face of the record. Rather, the only thing glaring from the record is that Walker had committed crime after crime after crime during his adult life.

With respect to the other raised issue, sufficiency of evidence supporting the robbery conviction, appellate counsel relied on the fact that Walker’s victim could not positively identify him as his attacker. In short, the unraised issue of sufficiency of evidence supporting the habitual offender finding was not clearly stronger than the issues raised by appellate counsel. Based on the foregoing, we conclude that Walker failed to demonstrate that his appellate counsel performed deficiently in this respect.

Finally, we reiterate that Walker’s remaining ineffective assistance of appellate counsel claims essentially echo those asserted against his trial counsel. For the reasons previously explained herein, we find that, like trial counsel, appellate counsel did not provide ineffective assistance to Walker. Accordingly, we affirm.

Affirmed.

ROBB, C.J. and FRIEDLANDER, J., concur.

      . Walker filed a motion requesting that we take judicial notice of our memorandum decision in State v. Hairston, No. 02A04-1209-PC-476, 2013 WL 1092600 (Ind.Ct.App. March 15, 2013), which we deny in an order issued contemporaneously with this opinion.

      . The State asserts that according to Weatherford v. State, 619 N.E.2d 915 (Ind.1993), and Lingler v. State, 644 N.E.2d 131 (Ind.1994), in his post-conviction proceedings, Walker was required to "demonstrate that he was not an habitual offender under the laws of the state” and that he could not prevail merely by asserting that the State did not carry its burden of proof. Weatherford, 619 N.E.2d at 917-18. The postconviction court agreed and concluded that Walker had failed to demonstrate that he was not a habitual offender. Walker claims that Gibbs v. VanNatta, 329 F.3d 582 (7th Cir.2003), should control. In Gibbs, the Seventh Circuit rejected the Lingler approach, reasoning that "[a] criminal defendant is entitled to effective assistance of counsel even if he can't prove that he is innocent of the crime with which he was charged, though he must show that with effective assistance he would have had a shot at acquittal.” Id. at 584.
      Post-Conviction Rule 1(8) and our supreme court's more recent decisions dictate that a habitual offender sufficiency challenge could not be raised as a freestanding claim of error in a post-conviction proceeding today. See, e.g., Canaan v. State, 683 N.E.2d 227, 235 (Ind.1997) ("An available grounds for relief not raised at trial or on direct appeal is not available as a grounds for collateral attack.”). Rather, "[i]n post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002) (emphasis added). Walker properly presented his challenge to the habitual offender finding via an ineffective assistance of counsel claim, and we review it accordingly. We note, however, that we review using the two-pronged Strickland standard and decline Walker's invitation to weigh in on the variance in the approaches taken by the Seventh Circuit and our supreme court in Gibbs and Lingler respectively.

      . In his brief, Walker points out the inaccuracy of his habitual offender charging information with respect to commission dates, clarifying that he committed the 1980 robbery on February 4, not February 8, and that he committed the 1989 burglary on March 10, not March 24. Appellant's Br. at 5. We note that the charging information for the habitual offender count reads “on or about” the date specified for each predicate offense.

      . Walker introduced the charging information for his 1989 burglary as Petitioner's Exhibit 11 in the post-conviction proceedings.

      . Although Flake addressed our review of jury instructions in a direct appeal setting, we consider the same concepts when reviewing instructions presented in a post-conviction proceeding as part of an ineffective assistance of counsel claim. See, e.g., Eichelberger v. State, 852 N.E.2d 631, 636-37 (Ind.Ct.App.2006), trans. denied.

      . Here, the 1995 cocaine dealing offenses were not overturned, but the post-conviction court found them to be statutorily ineligible for use as prior unrelated felonies to support a habitual offender finding. Ind.Code § 35-50 — 2—8(d)(3).


author: SHEPARD, Senior Judge.

text:
    Glenn Patrick BRADFORD, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 82A01-1203-PC-129.
    Court of Appeals of Indiana.
    May 29, 2013.
    Rehearing Denied Aug. 27, 2013.

      Stephen T. Owens, Public Defender of Indiana, Hope Fey, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

SHEPARD, Senior Judge.

Glenn Patrick Bradford was convicted of murder and arson in connection with the 1992 death of Tammy Lohr. His convictions were affirmed on appeal. Bradford now appeals the denial of his petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

The nature of Bradford’s claims makes it necessary to discuss the facts in some detail.

During the period relevant to this case, Bradford was an officer with the Evansville Police Department. He worked the night shift from 10:30 p.m. to 6:30 a.m. Trial Tr. p. 2394.

Bradford had an extramarital affair with Lohr during the four years prior to her death. Id. at 2219. Hoping to force a split between Bradford and his wife Dawn, Lohr sent Dawn several anonymous notes in 1990 informing her of the affair. Id. at 2146-49. Lohr dictated the notes to male friends to disguise their origin. Id. at 2146. The notes caused problems in the Bradfords’ marriage. Bradford promised Dawn he would end the affair, but he continued to see Lohr, regularly stopping by her house before and after his shift.

In June 1992, Dawn discovered that Bradford and Lohr’s affair was ongoing. As a result, Bradford told Lohr their affair had to end and returned his copy of her house key. Id. at 3307. During that same month, Lohr sent Bradford seven angry emails about his attempt to end their affair. Id. at 2065-71. She said that if Dawn ever asked her if she and Bradford were continuing their relationship, she would “tell [Dawn] we are ... I don’t care how long we’ve been separated.” Id. at 2069. Lohr reminded Bradford that the two of them had gone to a photographer to have their portrait taken, and she threatened to show the photographs to Dawn. Id. at 2068. Two to three weeks before Lohr’s death, Bradford told his partner Officer Brian Hildenbrant that he and Lohr were having problems. Id. at 2220. Bradford continued to stop by Lohr’s house before and after his shift on occasion.

On the evening of August 1, 1992, Lohr was at her house in Evansville. She spoke with her father on the telephone from 10:25 p.m. until shortly before 11 p.m. Id. at 2050. At 6:35 a.m. the next morning, Bradford reported a fee at Lohr’s house. Id. at 833. He told the dispatcher he was at the scene and there was a fatality. Id. When the first responders arrived, Bradford met them and said, “Tammy’s inside.” Id. at 981. He also said, “She’s dead, she’s dead, she’s got to be dead.” Id. at 984. Bradford told one officer he had not been able to get inside due to fee and smoke, id. at 960, but he told another officer Lohr “was on the bed and the bed was on fire,” id. at 1002. He told yet another responder, “I couldn’t get her out.” Id. at 1039. Bradford later said during questioning by detectives that he crawled into the house, saw that the fee was in the bedroom, and crawled back out. Id. at 2476-77.

By coincidence, one of the firefighters who went to the scene, Randy Baugh, had driven by Lohr’s home at 6:30 a.m. on his way to a nearby fee station. Id. at 1059. He did not see any signs of fee at that time. Id. Bradford’s report of a fee was received shortly after Baugh arrived at the fire station, and he returned to Lohr’s house. Id. at 1060. Thick black smoke was pouring out of the home’s roof vents and front door. Id. at 1094. Baugh entered the house, found the fee in a bedroom, and extinguished it. Id. at 1070. He found Lohr’s body on a bed in the bedroom. Id. at 1071. Baugh estimated that the fee could not have been burning for more than a few minutes. Id. at 1087. Brian Owen, another firefighter who reported to the scene, agreed with Baugh’s estimate. Id. at 1134.

After the fire, a detective drove Bradford back to police headquarters. The detective saw Bradford sitting at a computer at around 8 a.m. Id. at 2389. Later, after Bradford learned that it was possible to retrieve deleted e-mails from the police department’s system, Bradford admitted to a detective that he had deleted the seven angry e-mails from Lohr on the morning of the fire because “he was trying to remember her in a good light.” Id. at 2508-09.

Evansville Police Department crime scene investigators discovered an empty gasoline can in the bedroom. Id. at 1301. The Evansville Fire Department’s fire investigators determined that the fire was intentional; the arsonist had poured gasoline on the mattress where Lohr’s body lay and on the floor leading to the bedroom door and then ignited the gasoline while standing in the doorway. Id. at 1985. Furthermore, fee investigators concluded that an outside observer could have seen smoke coming out of the house’s attic vents within a minute of the fire igniting because the bedroom door was partially open and a “scuttle hole” to the attic was open in the hallway outside the bedroom. Id. at 1988. Finally, an investigator concluded that the fire had not been burning for more than seven to ten minutes when Baugh extinguished it. Id. at 1995-96.

The medical examiner determined that Lohr had been stabbed or slashed twenty-one times on the back, right shoulder, neck, and cheek. Id. at 1886. One of the wounds penetrated her heart, another was in her left lung, and another penetrated her right lung. Id. at 1893, 1894, 1895. Lohr’s carotid artery was also slashed, possibly several times. Id. at 1898. Her body was burned after death. Id. at 1903. The examiner was unable to provide a precise time of death because the fire destroyed many of the indicators that he generally considered in making that determination.

Crime scene investigators found the body of Lohr’s dog, a small poodle, in the front room of the house. It had been stabbed to death. They also noted signs of an apparent break-in, including a kitchen window with the screen cut out, an open gate in Lohr’s backyard, and a telephone line that had someone had manipulated. Id. at 964, 1321,1326, 1559. These actions were executed in somewhat unusual ways. The screen appeared to have been cut from the inside. Id. at 1343. And the telephone lines had been stripped and then twisted together such that Lohr would have been unable to call out but anyone calling her number would have received a busy signal. Id. at 2991.

One of the investigators tried to enter the house through the kitchen window, but he could not do it by himself because he needed a ladder to reach the window, and the ladder was too unstable. Id. at 1395. With other investigators holding the ladder in place, he managed to climb into the kitchen, but entry was still difficult because the kitchen sink, which was full of dishes, was right under the window. Id. at 1396-97. The investigators also noted that there were no indentations in the ground below the kitchen window when they first examined it, but the ladder they used left indentations. Id. at 1398. In addition, the back door to the house was locked from the inside when the first responders arrived. Id. at 1577. Finally, nothing had been stolen. Id. at 1560. The investigators concluded that someone had staged a burglary. Id. at 1557.

Next, the evidence revealed a gap in Bradford’s whereabouts on the night of August 1 between 10:57 p.m. (when Bradford purchased gas for his patrol car) and 11:49 p.m. (when he was seen driving by a restaurant in central Evansville). Id. at 55, 2290, 2668, 2845. A witness saw a marked patrol car at Lohr’s house that night at around 11 p.m. Id. at 1814. A log kept by Bradford shows that during that period he reported to a hit and run at Main and Michigan, but the officer working the accident, Eric Middendorf, testified he did not see Bradford at the scene. Id. at 55, 2813. At 11:26 that evening, Bradford contacted dispatch to request information about George Russell, whom he claimed to have seen. Id. at 55, 2779, 3367. However, Russell testified he was at his brother’s house at that time. Id. at 1804. As for the next morning, a bank located near Lohr’s home had an ATM camera directed toward the street, and it captured an image of Bradford’s car traveling toward Lohr’s home at around 6:30 a.m.

The State charged Bradford with murder and arson. Bradford filed a Notice of Alibi, alleging that he was working when the crimes occurred. During trial, the court allowed the jury to view the crime scene, and jurors visited Lohr’s house. Bradford presented evidence in support of his alibi. He also presented expert testimony from Barker Davie, a forensic chemist and fire investigator, to the effect that that the fire had been started before Bradford arrived that morning. Id. at 3041. On June 18, 1993, the jury found Bradford guilty as charged. The court sentenced him to eighty years, the maximum possible sentence.

Bradford appealed, and his case went directly to the Indiana Supreme Court. Bradford asked to suspend the appeal and remand to the trial court to clarify the record and hold hearings on newly-discovered evidence. The Court granted Bradford’s request. The trial court held a supplementary evidentiary hearing and determined that Bradford was not entitled to a new trial. In due course, the Supreme Court affirmed. Bradford v. State, 675 N.E.2d 296 (Ind.1996).

Bradford filed a petition for post-conviction relief. Thereafter, the State Public Defender’s Office conducted an extended-investigation. During a two-day hearing, Bradford presented testimony from Douglas Carpenter, a fire protection engineer. Carpenter had reviewed the record and performed his own test on a door from Lohr’s house. He concluded that the fire began between 4:30 and 6 a.m. PCR Tr. p. 271. On March 2, 2012, the court issued Findings of Fact, Conclusions of Law, and Judgment denying Bradford’s petition.

ISSUES

Bradford raises these four issues on appeal:

I. Whether the post-conviction court erred by determining that Bradford’s new evidence did not require a new trial.
II. Whether the prosecutors engaged in misconduct at trial.
III. Whether Bradford received ineffective assistance of trial counsel.
IV. Whether Bradford received ineffective assistance of appellate counsel.

DISCUSSION AND DECISION

A post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ritchie v. State, 875 N.E.2d 706, 713 (Ind.2007). When appealing from a denial, that petitioner stands in the position of one appealing from a negative judgment. Id. at 714. Where, as here, the post-conviction court enters findings and conclusions in accordance with Indiana Post-Conviction Rule (1)(6), we will reverse its findings or conclusions as being contrary to law where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion. Hall v. State, 849 N.E.2d 466, 469 (Ind.2006).

I. Newly-Discovered Evidence

Bradford contends that Carpenter’s testimony, which he believes establishes that the fire started well before he arrived at Lohr’s house, is newly-discovered evidence that entitles him to a new trial.

When reviewing a post-conviction court’s decision as to whether new evidence mandates a new trial,' we consider whether: (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. Carter v. State, 738 N.E.2d 665, 671 (Ind.2000). We carefully analyze these nine factors because “the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.” Id.

The defense expert at trial, Davie, testified he had visited Lohr’s house and reviewed reports, witness statements, depositions, and a videotape to learn about the case. He said that thick black smoke would not be seen coming from the house’s roof vents in the early stages of the fire because the mostly closed bedroom door would have prevented the smoke from escaping with sufficient intensity. Trial Tr. p. 3075. The fire would not begin to increase in intensity, Davie said, until the bedroom door burned through. Id. at 3081. Davie told the jury that the fire burned a hole through Lohr’s bedroom door in seven to ten minutes. Id. at 3086. He concluded that based on witness testimony and his understanding of the manner in which the fire developed, it was “highly improbable” Bradford would have had sufficient time to start the fire. Id. at 3124. He determined the fire burned for a total duration of at least fifteen minutes. Id. at 3255.

At the post-conviction hearing, the new witness Carpenter testified he reviewed a video of the crime scene, reports from fire investigators, a diagram of the house, depositions, portions of the trial testimony, and a necropsy report issued by a veterinarian who had examined the remains of Lohr’s dog. In addition, he visited Lohr’s house. Carpenter obtained a closet door from Lohr’s house that was of the same vintage of the burned bedroom door and performed his own tests on it. PCR Tr. p. 170. Like Davie, Carpenter calculated a burn-through rate for the bedroom door, and he concluded the State overestimated the rate at which a hole burned through the door. Id. at 166. Carpenter rejected Davie’s method of calculating the burn-through rate, asserting Davie’s method had been rejected by fire science experts even before Bradford’s original trial. Id. at 197. He also disagreed with several other aspects of Davie’s fire analysis as well as the analyses of the State’s witnesses. Carpenter prepared a computer model of the fire using eyewitness testimony, his own test results on the closet door, the condition of the other contents of the room, and the amount of carboxyhemoglo-bin found in the corpse of Lohr’s dog. Based upon his review of the evidence, Carpenter concluded the fire started sometime between 4:30 and 6 a.m. Id. at 271.

We think the post-conviction court correctly determined that Carpenter’s testimony did not require a new trial. Carpenter’s testimony was largely cumulative of Davie’s because he used much of the same evidence to arrive at the same essential position as Davie: the fire must have started well before the State said it did, and therefore Bradford could not have set it. Thus, rather than obliterate previous unfavorable evidence, Carpenter’s testimony at most merely impeached testimony by Davie and the State’s witnesses that was unfavorable to Bradford. See Baird v. State, 688 N.E.2d 911, 915 (Ind.1997) (trial court properly rejected newly-discovered medical expert testimony because the expert offered “another, perhaps more medically advanced opinion, but an opinion that significantly overlaps with those already proffered” and the opinion was “cumulative not pathbreaking”).

Moreover, Carpenter conceded an engineer could have performed his door burn-through test at the time of Bradford’s original trial, and the computer modeling he used was also available then. Bradford asserts Carpenter’s testimony is nonetheless newly-discovered because Carpenter relied on glass breakage data that was not published until 1997 and polyurethane mattress burn-rate data not published until 2003. However, Carpenter acknowledged that someone could have determined the mass loss rate for the mattress and the glass breakage data at the time of trial. PCR Tr. p. 258. He also agreed that if he had been able to generate that information himself, his opinion as to the duration of the fire would have been the same in 1992 as it was at the time of the postconviction hearing. Id. Thus, the evidence cited by Bradford could have been discovered at the time of trial.

Bradford cites Bunch v. State, 964 N.E.2d 274 (Ind.Ct.App.2012), trans. denied. Bunch was accused of setting a fire that killed her three-year-old child. She was convicted of felony murder “largely on expert testimony describing [the] points of origin for the fire.” Id. at 280. In her defense, Bunch had presented evidence that her home had electrical problems and called an arson investigator who testified the fire was most likely accidental. The Supreme Court affirmed the felony murder conviction, noting that accelerant appeared to have been used to start and strengthen the fire.

Bunch’s post-conviction petition claimed newly-discovered evidence in fire victim toxicology and fire investigation entitled her to a new trial On appeal from a denial of relief, a panel of this Court determined that Bunch’s expert toxicology evidence met the requirements for newly-discovered evidence. The Court noted that the new expert reviewed the victim’s autopsy and toxicology reports and indicated the results were consistent with an accidental fire rather than an intentionally-set fire aided with an accelerant. The expert also stated that Bunch’s toxicology results were consistent with her version of events and she did not intentionally set the fire with liquid accelerant.

This Court determined that the new expert’s testimony was based on “transfor-mative advancements” in fire victim toxicology science. Id. at 288. Furthermore, the new testimony was not cumulative of evidence Bunch presented at trial because her methods were “considerably different” from those of her trial expert. Id. at 291. Specifically, the trial expert had not testified as to the relationship between the victim’s physical condition and the origin determination. Next, the Court determined the evidence was not merely impeaching because it offered “a new, exculpatory explanation for [the victim’s] death.” Id. Finally, the panel concluded the new testimony would probably produce a different result at retrial because it was “if not entirely consistent with the eyewitness testimony, at least not inconsistent with it.” Id. at 296.

The present case differs from Bunch in several substantial respects. For one thing, Carpenter’s testimony was not based on major advancements in fire investigation science. He conceded that although new standards for polyurethane mattress burn rates and glass breakage rates had been issued since Bradford’s trial, the relevant data could have been discovered through testing techniques that were available at the time of trial. Furthermore, Carpenter agreed an engineer could have performed his door burn-through rate test and his computer modeling at the time of trial. Thus, his methods were not considerably different from those that could have been used at Bradford’s trial.

Perhaps a more telling difference is that Carpenter’s testimony did not offer a new, different explanation for the fire but rather attempted to prove the same claim that Bradford originally presented at trial— that the State’s estimates of when the fire began were incorrect.

Finally, Bunch repeatedly noted that the State had failed to prove motive or other evidence that would show that Bunch intentionally set the fire. Here, the State provided evidence that Bradford had tried and failed to end his affair with Lohr and that the affair was causing problems in his marriage. Bunch does not compel reversal of the postconviction court, and we find no clear error on this issue.

II. Prosecutorial Misconduct

Bradford contends prosecutors engaged in misconduct in the course of questioning witnesses, warranting a new trial.

In reviewing such a claim, a court first determines whether the prosecutor engaged in misconduct and then determines whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which the defendant should not have been subjected. Stephenson v. State, 742 N.E.2d 463, 482 (Ind.2001). The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s verdict, not the degree of the impropriety of the conduct. Id.

Bradford claims the prosecutors committed two wrongs at trial: (1) they used Barker Davie’s deposition to impeach him in an improper, misleading manner as to the duration of the fire; and (2) they allowed Donald Johnson, an agent with the Bureau of Alcohol, Tobacco, and Firearms, to testify that he was not collecting any fees or “private expenses” for testifying, when in fact the State paid $727.46 for Johnson’s travel and meals. Trial Tr. p. 3836. Both of these claims were available on direct appeal because they could have been raised during the supplemental proceedings that the Supreme Court permitted Bradford to pursue before deciding the merits of that appeal. As the Supreme Court did in Ward v. State, 969 N.E.2d 46, 85 (Ind.2012), we conclude these claims are unavailable because they could have been raised on direct appeal.

III. Assistance of Trial Counsel

Bradford asserts that his trial attorneys committed multiple mistakes that rendered his trial unfair. To establish a claim of ineffective assistance of trial counsel, a defendant must demonstrate that counsel performed deficiently, and the deficiency resulted in prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind.2008). To establish prejudice, a defendant must show a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different. Henley v. State, 881 N.E.2d 639, 644 (Ind.2008).

Counsel’s performance is presumed effective, and a claimant must offer strong and convincing evidence to overcome this presumption. Ritchie, 875 N.E.2d at 714. If we can resolve an ineffective assistance claim on the question of prejudice, we need not address whether counsel’s performance was deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind.2009).

A. Impeachment of George Russell

At trial, the State presented testimony from George Russell that he was at his brother’s house on the night of Lohr’s murder. This testimony contradicted Bradford’s activity log, which showed that Bradford asked dispatch for information on Russell at 11:26 p.m., indicating he had seen Russell out and about at that time.

Bradford first argues that his counsel should have impeached Russell with a 1986 robbery conviction. To be sure, at the time of Bradford’s trial a conviction of robbery was admissible to attack the credibility of an adult witness. See Storey v. State, 552 N.E.2d 477, 481 (Ind.1990) (infamous crimes, including robbery, may be used for impeachment).

We cannot say that Bradford was prejudiced by his attorneys’ failure to inform the jury of Russell’s robbery conviction. The conviction was over six years old at the time of trial and was committed when Russell was sixteen, and jurors may have concluded that it was too remote in time to provide insight into his character. Furthermore, Russell admitted under cross-examination that Bradford had arrested him in the past, and such an admission seems more damaging to Russell’s credibility than an old conviction because the arrest provided a more personal motive for Russell to lie to harm Bradford. Moreover, Bradford’s alleged sighting of Russell was only one of the gaps in Bradford’s activity log, and the jury could have concluded that even if Russell was not credible due to a past conviction, there was still ample time for Bradford to have murdered Lohr over the course of the evening.

Next, Bradford argues that his attorneys failed to adequately impeach Russell with a prior inconsistent statement. During a pretrial deposition, an officer who had interviewed Russell said that Russell told him he had been “cruising around” that evening. PCR Tr. Vol. Ill, Petitioner’s Ex. 20, p. 7. Bradford acknowledges that his counsel attempted to generally impeach Russell as to his whereabouts that night, but he says his counsel should have impeached him with the officer’s deposition testimony.

At trial, Bradford’s counsel impeached Russell as follows:

Q: On the evening of August 1st, were you out driving?
A: No.
Q: You were nowhere out at all on August 1st?
A: No.
Q: Do you remember talking to an investigator in this case earlier?
A: Hm-hm.
Q: Is he here in the courtroom today? See the man back there in the gray hair?
A: Yeah.
Q: Do you remember talking to him before?
A: Yeah.
Q: Did you ever tell him that that night you were close to downtown driving?
A: Excu [sic] ... I didn’t understand you.
Q: Did you ever tell him that you were close to downtown driving that night?
A: No.
Q: You never told him that?
A: No.

Trial Tr. pp. 1801-08. Thus, Bradford’s counsel indicated to the jury that Russell was contradicting his past statement to the police, a direct challenge to Russell’s credibility on this point. His counsel could have reasonably decided that using the officer’s deposition testimony to further impeach Russell would belabor the point and distract the jury during a protracted trial. Furthermore, Russell’s trial testimony and the officer’s deposition testimony are not necessarily contradictory, because Russell testified at trial that he had driven to his brother’s house earlier in the night.

Bradford cites Ellyson v. State, 603 N.E.2d 1369 (Ind.Ct.App.1992), in which a panel of this Court concluded that trial counsel was ineffective for failure to lay the groundwork to impeach a witness with prior inconsistent statements. By contrast, Bradford’s counsel did follow the procedures for impeachment and provided a basis for the jury to infer that Russell was contradicting a past statement to law enforcement. The post-conviction court did not err on this issue.

B. Rehabilitation of Expert Witness Davie

Bradford argues that the State used Davie’s deposition testimony at trial to mislead Davie into agreeing with its theory that the fire was of short duration, and his counsel should have done a better job of rehabilitating Davie on redirect examination.

At trial, Davie testified on direct examination that the fire had to have been ignited before Bradford arrived. On cross, the following exchange occurred:

Q: You told me in a deposition that you thought this could be a seven minute fire, right?
A: I don’t believe I said that at all. Can you quote me the line and page?
Q: About page 48, line 14, well a couple of lines up there. “Answer: Seven minute fire with that much heat that would still be pushing it. Question: But I’m looking for the absolute outside. Are you saying that’s possible? Answer: Not probable but possible. Only very, very, very remotely possible.”
A: That’s correct, the least degree of possibility that I can think about.

Trial Tr. p. 3280. Reading the deposition quote in context establishes that the State had asked Davie if the fire burned for seven minutes before Bradford reported it, not the total duration of the fire from ignition to extinguishment. Id.

On redirect examination, the following discussion occurred:

Q: Mr. Davie, do you know of anything after your cross-examination and this testimony that changes your opinion about the length of time that the fire could have burned?
A: No.
Q: Mr. Levco asked you about the very, very possibly seven minutes, correct?
A: [no answer in transcript]
Q: But is it a fair statement to say that consistent with the evidence in front of you and not leading into speculation so much the fire would likely burn longer than seven minutes?
A: Yes, it would.
Q: Your opinion is fifteen minutes or longer?
A: That’s correct.

Id. at 3254-55. Thus, Bradford’s attorneys specifically addressed the issue on redirect examination and allowed Davie to re-state his opinion about the total length of the fire. We cannot conclude that the attorneys performed deficiently by failing to also show the jury that the State had selectively quoted from Davie’s deposition. The post-conviction court did not clearly err by rejecting this claim.

C. Failure to Hire a Different Expert Witness

Bradford says that Davie was such an inadequate expert witness that hiring him instead of someone else was ineffective assistance. Selection and presentation of expert witness evidence are strategic choices, and we give deference to counsel’s choice of strategy and tactics. Ward, 969 N.E.2d at 64.

Bradford’s attorneys hired Davie well in advance of trial. Davie had a degree in chemistry and had attended numerous specialized seminars in fire investigation. He co-owned a fire investigation business and had analyzed “approximately 1700 fire/explosion scenes to determine the causes and origin of fire.” Trial Tr. p. 3043. Davie was a member and former officer of numerous national and state fire investigation associations. He had published seven articles, lectured frequently at law enforcement and other fire investigation organizations, and testified in trials. Bradford’s attorneys thought Davie’s testimony would have a strong impact upon the jury because he had testified for the State “over twenty times” and had always helped to obtain convictions. PCR Tr. p. 33. Until Bradford’s ease, Davie had never testified for the defense in a criminal matter. Trial Tr. p. 3260. Indeed, one of the State’s experts testified at trial that Davie had a good reputation in the fire investigation community. Id. at 3835. These factors demonstrate the attorneys’ selection of Da-vie was not deficient performance.

Bradford says Davie made use of an obsolete standard in determining how long it took for the fire to burn through Lohr’s bedroom door, and trial counsel should have hired a different expert who would not have used that standard. However, the National Fire Protection Agency did not discard the burn-through standard used by Davie until early 1992, only a few months before trial. PCR Tr. p. 197. We cannot say that Bradford’s attorneys were required to be as well informed in fire investigation science as the experts and as such rendered deficient performance by being unaware of this change and by continuing to use Davie’s services.

Next, Bradford notes that Davie, unlike Carpenter, was not an engineer by training and therefore was unqualified to perform the work that Carpenter did. However, Davie was clearly qualified to discuss fire investigation procedures and the potential causes and characteristics of fire. Bradford’s counsel did not perform deficiently merely because another expert may have provided a different perspective based on different training. See Ward, 969 N.E.2d at 65.

Finally, Bradford contends that someone had once challenged Davie’s methods in a written response to one of Davie’s published articles. We cannot say that Bradford’s attorneys acted unreasonably in hiring Davie merely because his methods were questioned in writing once over the course of his lengthy career.

For these reasons, the post-conviction court did not commit clear error by rejecting Bradford’s claim that his attorneys should have hired a different expert.

D. Failure to Challenge a Jury Instruction

Bradford argues that his attorneys failed to object to a defective jury instruction, which he says caused the jury to consider improper evidence and resulted in an unjust verdict. To establish ineffective assistance of counsel due to failure to object, a defendant must prove that an objection would have been sustained if made and that he was prejudiced by the failure. Kubsch v. State, 934 N.E.2d 1138, 1150 (Ind.2010).

In Bradford’s trial, Final Instruction Fourteen provided:

The credibility of a witness may be attacked by introducing evidence that on some former occasion the witness made a statement, or made a written statement in former testimony, testified or acted in a manner inconsistent with his or her testimony in this case. It is inconsistent if the witness denied making the prior statement or if the witness could not remember making the prior statement. Evidence of this kind may be considered by you in deciding the weight to be given to the testimony of that witness as well as substantive evidence of the guilt of the defendant.

Trial Tr. p. 213. The parties agree that this instruction was taken from pattern jury instructions regularly employed at the time of trial. Bradford notes that in Modesitt v. State, 578 N.E.2d 649, 653-54 (Ind.1991), the Indiana Supreme Court held prior statements could no longer be considered as substantive evidence of guilt unless: (1) the prior inconsistent statement was given under oath; (2) the prior statement was consistent with the declar-ant’s testimony and is offered to rebut an express or implied charge against the de-clarant of recent fabrication or improper influence or motive; or (3) the statement is one of identification of a person made after perceiving the person.

It appears that Final Instruction Fourteen did not conform to the holding in Modesitt. Consequently, had Bradford’s counsel objected to the instruction on that basis, it would have been sustained.

As for possible prejudice, Bradford makes two points. First, he claims the State improperly impeached Davie with his deposition (asking more or less, “you told me in your deposition it could have been a seven-minute fire, didn’t you?”), and the jury therefore could have improperly considered the “inconsistent” deposition as substantive evidence. Of course, in Mode-sitt the Court held that prior statements under oath, such as a deposition, are admissible as substantive evidence. Thus, the jury could have properly considered inconsistent statements in Davie’s deposition as substantive evidence, and Bradford suffered no prejudice from the instruction in this regard.

Second, Bradford notes that during trial his wife Dawn denied that Bradford’s partner Hildenbrant asked her whether she thought Bradford committed the crimes. She further denied that she answered Hil-denbrant’s question by saying: “I don’t know, he’s been acting strange lately, he’s crazy.” Trial Tr. pp. 2781-82. Subsequently, the State put Hildenbrant on the stand. He testified that he had asked her whether she thought Bradford was guilty and that she responded, “I don’t know, he’s been acting strange lately, he’s crazy.” Id. at 3735. Bradford argues that the jury improperly considered this prior inconsistent statement as substantive evidence and it was highly prejudicial.

We disagree as to the question of prejudice. Bradford conceded at trial that his behavior in the days following Lohr’s murder could be described as “crazy” because he worried about the possibility of intruders coming into his house or a fire breaking out. Id. at 3452-53. Thus, Dawn’s characterization of his conduct was supported by other evidence. Under the circumstances of all of the evidence presented in the case, we cannot conclude that Dawn’s prior inconsistent statement prejudiced Bradford to the extent that the outcome would have been different if Bradford’s counsel had objected to Final Instruction Fourteen and the jury had not been told it could consider prior inconsistent statements as substantive evidence.

E. Cumulative Effect of Mistakes

Bradford contends that his counsel’s mistakes, when considered together, establish that he received ineffective assistance.

There are two points on which Bradford’s trial counsel rendered deficient performance, as described above. Nevertheless, considering the entirety of this case, in which the trial lasted several days and involved dozens of witnesses, and his counsel’s vigorous pursuit of an alibi defense and attempts to disprove or undermine the State’s expert fire investigation evidence, we cannot say that the cumulative impact of the mistakes fell below an objective standard of reasonableness or altered the outcome of the trial. See Potter v. State, 684 N.E.2d 1127, 1135 (Ind.1997) (counsel’s overall strategy was reasonable and any mistakes did not affect the outcome, so the cumulative effect did not amount to ineffective assistance). Consequently, the post-conviction court did not clearly err in denying Bradford’s claims of ineffective assistance of trial counsel.

IV. Assistance of Appellate Counsel

Bradford says his appellate lawyers should have argued that the trial court erred by allowing firefighters Randy Baugh and Brian Owen to state their opinions as to how long the fire had been burning before they arrived at Lohr’s house. He contends that Baugh and Owen were not qualified to offer expert opinions.

At the time of Bradford’s trial, the Indiana Rules of Evidence had not yet been adopted. Still, it was well established that for a witness to qualify as an expert in a specific field, the subject matter must be related to some scientific field beyond the knowledge of the average lay person, and the witness must have sufficient skill, knowledge, or experience in the field to make it appear that the witness’s opinion will aid the trier of fact. Wissman v. State, 540 N.E.2d 1209, 1212 (Ind.1989). Even if evidence is not beyond the knowledge and experience of the average juror, the expert may nevertheless testify concerning special knowledge of the subject. Id. at 1213.

Baugh was a captain with the Evansville Fire Department. He had been with the department for ten years and had fought at least fifty fires. Trial Tr. pp. 1054-55. He attended seminars in firefighting and had been certified as a Master Firefighter in tactics. Id. at 1054. Baugh’s training also included studying the manner in which fires burn under different conditions and the effects of ventilation on fires. Id. at 1082. Owen had been with the Evansville Fire Department for twenty-one years and worked on hundreds of fires. Id. at 1122. They both testified that based on the amount of smoke coming from Lohr’s house, it had only been burning a short time. Id. at 1087, 1133-34. Bradford objected to Baugh and Owen testifying as experts. At one point, Bradford said Baugh was not specifically qualified to testify as an expert on “fire behavior,” and the trial court determined that the objection went “to weight not admissibility.” Id. at 1073.

Bradford’s appellate counsel could have reasonably concluded that the Supreme Court would affirm the trial court’s decision to allow Baugh and Owen to testify as witnesses with specialized knowledge. See Wissman, 540 N.E.2d at 1213 (no error in allowing pathologist to testify to the angle of the gunshot wound, although the pathologist lacked specialized training in ballistics, because the lack of that specialized training went to the weight of the testimony, not admissibility, in light of his other qualifications). Consequently, it would have been a reasonable choice for counsel to present other, stronger issues instead. None of the claims counsel presented on appeal prevailed, but we cannot say that the claim Bradford presents here was stronger than each of the claims that counsel chose to raise. We find no clear error in the post-conviction court’s ruling.

CONCLUSION

For the reasons stated above, we affirm the judgment of the post-conviction court.

Affirmed.

RILEY, J., and VAIDIK, J., concur.

      . We held oral argument March 26, 2013 at the Court of Appeals courtroom in Indianapolis. We thank the parties for their helpful presentations.

      . The record for this appeal includes the original trial transcript, which we cite as "Trial Tr.,” a transcript for supplemental proceedings on remand, which we cite as "Supp. Trial Tr.," and the post-conviction hearing transcript, which we cite as "PCR Tr."

      . Bradford’s trial counsel rehabilitated Davie on redirect by allowing him to reiterate his opinion that the fire’s duration was at least fifteen minutes, so the prosecution’s use of Davie’s deposition to allegedly mislead him on cross-examination into apparently agreeing that the fire was of much shorter duration did not place Bradford in grave peril. Furthermore, in light of all of the evidence presented at trial, we cannot say that the jury’s verdict was affected by the State’s failure to tell the jury that it paid or intended to pay Johnson’s travel and meal expenses.

      . This holding was later incorporated into Indiana Evidence Rule 801(d), which took effect on January 1, 1994.