ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Jodi Kathryn Stein                Karen M. Freeman-Wilson
Marion County Public Defender     Attorney General of Indiana
Agency                        
Indianapolis, Indiana
                            Timothy W. Beam
                            Deputy Attorney General
                            Indianapolis, Indiana

TERRY PENNYCUFF,                  )
                                       )
    Appellant (Defendant Below         ),    )  49S02-0104-CR-213
                                       )  in the Supreme Court
                  )  
                                       )  49A02-9902-CR-117
STATE OF INDIANA,                      )  in the Court of Appeals
                                       )
    Appellee (Plaintiff Below          ).    )

    A jury found appellant Terry Pennycuff guilty on two counts of incest, three counts of child molesting, and one count of sexual misconduct with a minor for carrying on a sexual relationship with his teenage daughter over a three-year period. The Court of Appeals ordered a new trial, holding that Pennycuff’s lawyer was ineffective for failing to object to evidence that violated Pennycuff’s rights under Doyle v. Ohio. See footnote Pennycuff v. State, 727 N.E.2d 723 (Ind. Ct. App. 2000).
    
We conclude that the caselaw points to a different outcome.

    T.P. explained that she kept silent about her father’s misconduct because he told her she could be jailed for prostitution, and that he would kill them both if she spoke. (R. at 248-49.) She eventually disclosed what had been going on because her father, by then divorced from T.P.’s mother, described his new girlfriend’s daughter as “cute.” (R. at 260.) T.P. became concerned for the safety of that child and of her own eight-year-old sister. (Id.) T.P. testified that she got along well with this new girlfriend. (R. at 256.) Regarding her relationship with her father, T.P testified:
    Q.    [T.P.], how do you feel about your dad right now?
    A.    I love him.
    Q.    You still love him?
    A.    (No audible answer.)
        THE COURT: You have to answer yes or no.
Yes.
Is there any anger?
Yes.
Why?
Because I want him to pay for what he did to me. I want him to stop lying. I wish he’d tell the truth.

(R. at 263.)
    
    On cross-examination, the defense methodically sought to undermine T.P.’s credibility by delving into T.P’s relationship with each of her parents. T.P.’s father first had inappropriate sexual contact with her in May 1993. (R. at 226.) When her parents separated in October 1994, however, T.P. elected to stay with her father (although her brother and sister lived with their mother) because she and her mother did not get along and even physically fought at times. (R. at 270, 280.) Appellant Pennycuff got custody of T.P. and her brother in April 1995, but T.P. moved back in with her mother during the summer of 1995 to avoid further molestation by her father. (R. at 283.) However, T.P., who admitted to being “rebellious,” (R. at 270), again quarreled with her mother, (R. at 284-85), and moved back in with her father in the fall of 1995, (R. at 286). Subsequently, T.P.’s relationship with her mother improved, although T.P. still did not confide in her mother about the molestation for another month or two. (R. at 296-97.)

    After establishing this sequence of events, defense counsel asked T.P., “During this period of time—you—you have always kind of just vacillated between your mother and father, whichever—depending upon whichever person kind of treated you the best; is that right?” (R. at 299-300.) T.P. replied, “Yes.” (R. at 300.) Defense counsel went on to establish that four months after T.P.’s accusations, T.P. paged her father because she and her mother were fighting. (Id.) T.P. asked her father to come over to her mother’s house where T.P. was staying, which he did. She asked her father to take her home with him, but he declined because he was under a no contact order. (R. at 301-02.)

    The defense also attacked T.P.’s claim that her father paid her for sex by eliciting admissions that T.P. helped with housework, (R. at 308), and that he had given her money at times before the molestation began, (R. at 307).

    The State’s next witness was T.P.’s brother, who is a year and a half younger than she. (R. at 225, 323.) He testified that Pennycuff sometimes went into another room with T.P., and ordered the boy to stay in the living room. (R. at 326-27.) He also testified that, although he had no knowledge of any sexual relationship between Pennycuff and T.P., Pennycuff had sometimes given T.P. money. (R. at 327.)

    On cross-examination, the defense sought to elicit testimony from the brother that T.P. disliked their father’s new fiancée, Jane, and had threatened to ruin the planned wedding. (R. at 331.) The boy acknowledged that T.P. had expressed dislike for Jane, but he denied having heard T.P. make any such threat. (Id.)
    
    The State next called Marion County Sheriff’s Department Detective Sergeant Carmie Godan. (R. at 333.) Detective Godan testified about T.P.’s demeanor when she gave her initial statement. (R. at 336.) Detective Godan described T.P. as confused and embarrassed, and said that T.P. blamed herself for the relationship. (Id.) Godan also testified that, during a search of Pennycuff’s apartment, police found the calendar that T.P. described. (R. at 340.)

    On cross-examination, Godan conceded that during their search the police found no videotape or photographs showing T.P. nude. (R. at 355-56.) Defense counsel also established that Pennycuff had no advance warning of the search. (R. at 358.)

    The State then called T.P.’s mother, who testified that the night T.P. disclosed what Pennycuff had done, T.P. was upset and afraid of going to jail. (R. at 390.) She said Pennycuff had given T.P. money at times and that, when asked, he said he had paid T.P. for helping with various household chores. (R. at 391-92.)

    On cross-examination, T.P.’s mother admitted that before T.P. accused Pennycuff of sexual misconduct, the mother herself had twice broached the subject of molestation. (R. at 397-98.) The first time was during custody negotiations, when the mother asked T.P. if her father had ever touched her and T.P. responded that the mother was crazy for asking such a question. (Id.) Then, about a year before her divorce, the mother asked T.P. in the presence of a therapist whether there had been any molestation, and T.P. said no. (R. at 398.)

    The State’s final witness was a psychiatric social worker, (R. at 405), who testified about T.P.’s demeanor during their meetings, (R. at 407), and said that children who are sexually abused by a family member rarely come forward immediately, (R. at 408).

    When the State rested, then, the testimony of T.P. stood as the centerpiece of its case. Pennycuff’s counsel managed to plant the seeds for a defense focused on T.P.’s credibility.     

    To do this, the defense presented two witnesses: Pennycuff and his second wife Jane (whom he married the same day that he was later served with the search warrant based upon T.P.’s accusations). (R. at 417-18.) Jane testified that she and Pennycuff had accelerated their wedding date, and married in Louisville rather than locally, because of T.P.’s threats to ruin the wedding. (R. at 418-19.) She also testified about the lock box in which the calendar was found:
    Q.     And the lock box. Did [Detective Godan] ask [Pennycuff] for the keys to this box?
    A.    I don’t know if it was her, but one of the detectives ask him for the key.
    Q.    Did he cooperate?
    A.    Yes, he did.
    Q.    Give her the keys and everything?
    A.    Yes.
    Q.    All right.
    A.    He told them he had nothing to hide. That they could search his apartment all they wanted to, that he had nothing to hide.

(R. at 421-22.)

    On cross-examination, Jane admitted that she got along well with T.P. and that T.P. had never directly told Jane that she disliked Jane or opposed her marriage to Pennycuff. (R. at 427.)
    
    Pennycuff then testified, to refute his daughter’s allegations. (R. at 438.) He began by saying he had never been arrested prior to these events, and had always maintained employment and supported his family. (R. at 440.) He testified he had paid his daughter for helping around the house, but never had a sexual relationship with her or paid her for sex. (R. at 444.) Credibility and cooperation were part of Pennycuff’s theme on direct examination:
    Q.    The night that the detectives came into your home and executed a search warrant, that same day did Detective Godan take a statement from you? See footnote
    A.     Yes, she did.
    Q.    Did she ask you about any of these allegations that you’ve heard about at the trial here?
    A.    Yes, she did. She sat at the table and did a—a little cassette tape.
    Q.    And what did—
    A.    And see if I was going to do one. And I was having a sugar attack. See footnote I—I was in and out, kind of, you know, shaky and dizzy. I had some stuff. I don’t remember it happening.
    Q.    All right. But you did cooperate and you did give a statement; is that correct?
    A.    Yes, I did.
    Q.    You had nothing to hide? You said—
    A.    No, I told her I had nothing to hide in my apartment.
    Q.    And you—and you told her—and you answered every question she asked you; is that correct?
    A.    Yes, I did.
    Q.    What did—what did you tell her that day regarding whether—whether or not you had any sexual relationship?
    A.    Well she asked me if I’d had sexual relations with my daughter. I told her, no, I didn’t.
    Q.    Did she ask you why she thought—why you thought your daughter would—would make these allegations?
    A.    Yes, she did. Why would your daughter have these charges against you if you hadn’t of been doin’ it to her.
    Q.    What did you say?
    A.    And I told her that the reason was that she wanted to be emancipated and she’d asked me two or three times if she could be emancipated so she could live with her mother. And I told her she can go live with her mother all she wanted, but I had custody of her. If she wanted to be emancipated then I was the one that had to do it if she, you know, wanted out on her own. And I told her, no, she wasn’t gonna run the streets on her own. She wasn’t old enough and she wasn’t workin’.

(R. at 445-46.) He later testified about an exchange that occurred three days before T.P. made her accusations:
[T.P.] said, yes, me and my mother are goin’ to ruin your wedding. She said, why should you be happy if you won’t let me go out and be happy on my own. I said, [T.P.], I told you you can go live with your mom I said. And she said, well, she said, you know, more or less that she wanted to go live with her mom. And I told her she could. And she said that she just want—wanted to be happy on her own. She didn’t wanna live with her mom. She said her mom would take her back as a roommate and not a daughter.

(R. at 446, 448.)
    
    Pennycuff’s counsel questioned him about the calendar entries that supposedly recorded sexual contacts with his daughter. (R. at 449-56.) Pennycuff provided alternative explanations for various entries. (Id.) For example, he explained that the “I” noted on December 25 recorded a missed insulin shot. (R. at 453.)

The prosecutor took up this topic while cross-examining Pennycuff:
Detective Godan talked to you and asked you about those initials on the calendar; didn’t she?
Ah—I don’t think she did.
You don’t remember her mention a calendar and ask you about those initials?
No, they took that stuff and walked out the door with it.
My question is: You do not remember Detective Godan . . .
No, I don’t.
. . . asking you about the initials?
A.    No, I don’t.
And you don’t remember her giving you a chance to explain those initials?
No, I don’t.
And you don’t remember not responding to her at that time?
No.

(R. at 493.)

    After the defense rested, the prosecutor called Detective Godan back to the stand for the following exchange:
Did you ask the Defendant, Terry Pennycuff, about the calendar?
Yes, I did.
Did you ask him about the initials?
Yes, I did.
And how did he respond?
He didn’t give me any response.
In fact, did you ask him whether or not—told him that this was his chance to respond?
Yes.
To that?
Yes, I did.
And he did not. No further questions.

(R. at 498-99.)

    The prosecutor spoke about the calendar during the rebuttal portion of her closing argument:
Let’s talk about the calendar because that’s something that’s just—it’s—you’ve gotta believe [the daughter] or the Defendant. You’ve got to choose which one you’re going to believe. Okay. Who is the more credible witness. I already talked about [the daughter’s] credibility. Untouchable. Unbelievable. You can’t get a better witness than that. Now let’s talk about the Defendant. Let’s talk about what he had time to figure out what those initials stood for. He didn’t tell the detective anything about it when he had an opportunity to explain it. He gets up there and he had overnight to think about it because we introduced some of these things.

(R. at 729.)

    Pennycuff’s attorney did not object to any of the references to Pennycuff’s non-responsiveness.

The actual transcript of the interview conducted during the search reveals that Pennycuff gave no verbal response to five questions. (Supp. R. at 205-08.) The first two times, Godan reacted “No? Okay.” and continued the questioning. See footnote The third time, when Godan asked “No?” Pennycuff confirmed “No.” See footnote The last two times, Pennycuff responded to Godan’s “No?” with an inaudible response. See footnote The last instance involved the following exchange:
Well, also, in there, she says that that book, it has the 49’ers on it, that you would write in there different times with different initials when you’d had sex with her.
(No verbal response). See footnote
No?
(Inaudible).
Okay. Well, do you have any, anything to say on your behalf on this?
Yeah. She’s lying just to get out of here.

(Supp. R. at 208.)

    On appeal, the Court of Appeals found no fundamental error, See footnote but held that Pennycuff’s counsel was ineffective in failing to object to the references to Pennycuff’s silence. Pennycuff, 727 N.E.2d at 729. It found a dispositive Doyle violation and ordered a new trial. Id. at 733-34. The State seeks transfer to this Court.

Bellmore v. State, 602 N.E.2d 111, 123 (Ind. 1992) (citations omitted).
When evaluating ineffectiveness claims, courts must be cognizant of the fact that “[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 695. Accordingly, when appellate courts are considering the claim of actual ineffectiveness of counsel, they “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

Thompson v. State, 671 N.E.2d 1165, 1168 (Ind. 1996).
    
    When the claim is that defense counsel failed to object to certain evidence or testimony:
This Court will not speculate about what may have been the most advantageous strategy in particular cases. A deliberate choice made by counsel for some tactical or strategic reason does not establish ineffective assistance of counsel. Owens v. State (1984), Ind., 464 N.E.2d 1277. Moreover, the decision to forego perfunctory objections having little chance of success or no direct or substantial relationship to the main thrust of the defense is within the realm of reasonable trial strategy. Bevill v. State (1985), Ind., 472 N.E.2d 1247. The appellant must show that counsel’s alleged failure to act or his choice of strategy harmed the cause. Kelly v. State (1983), Ind., 452 N.E.2d 907. When an ineffective assistance claim is predicated on counsel’s failure to interpose an objection, appellant has the burden to show that a proper objection would have been sustained by the trial court. Kimble v. State (1983), Ind., 451 N.E.2d 302.

Hudson v. State, 496 N.E.2d 1286, 1295 (Ind. 1986).

    Having concluded that this basic trial strategy was reasonable under the circumstances, we are led to the question of whether Pennycuff’s counsel was ineffective in failing to object to the State references to Pennycuff’s non-responsiveness. The basic message of Doyle is that impeachment on the basis of a defendant’s silence is fundamentally unfair and violates Due Process. Anderson v. Charles, 447 U.S. 404, 407 (1980). Miranda warnings inform the accused of his right to remain silent, and implicitly assure him that his silence will not be used against him. Id. at 407-08.

    In Doyle, however, the U.S. Supreme Court explicitly recognized that post-arrest silence may be used “to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.” Doyle v. Ohio, 426 U.S. 610, 619 n.11 (1976) (citing United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975)). In Fairchild, the defendant’s counsel elicited testimony from a state witness that the defendant had fully cooperated. Fairchild, 505 F.2d at 1383. The court then allowed testimony by another state witness that the defendant had refused to make a statement following a Miranda warning. Id. at 1382. The court held that a criminal defendant’s silence following arrest and warning “is not excluded so that the defendant may freely and falsely create the impression that he has cooperated with the police when, in fact, he has not.” Id. at 1383. Applying this principle, the court determined that “Fairchild opened the door to a full and not just a selective development of the subject. . . . [O]nce [the defendant] did broach [the subject of cooperation] the bar was lowered and he discarded the shield which the law had created to protect him.” Id. (citations omitted).

    Subsequent federal authority continues to recognize an exception to Doyle for claims of cooperation by a defendant. See, e.g., United States v. Conlin, 551 F.2d 534, 537 (2nd Cir. 1977) (where defendant maintained he had spoken throughout the incident at issue, government was allowed to rebut this assertion with evidence of silence), cert. denied, 434 U.S. 831 (1977); United States v. Allston, 613 F.2d 609, 611-12 (5th Cir. 1980) (defendant “opened the door” to cross-examination regarding his post-arrest silence, and closing argument questioning why the defendant had not come forward with information for a year carried the “lingering fragrance of rebuttal”).

    The Fairchild court explicitly limited this exception, so that a claim of cooperation does not give a prosecutor carte blanche to use silence as direct evidence of the defendant’s guilt. Fairchild, 505 F.2d at 1383. The silence may be used only to rebut the impression of cooperation. Id.

    The Seventh Circuit discussed this same distinction in United States v. Shue, 766 F.2d 1122 (7th Cir. 1985). Defendant Shue testified on direct examination that he had cooperated by providing fingerprints and hair and handwriting samples, and by participating in lineups. Id. at 1128. This created an impression of general cooperation which, the court held, the prosecution was entitled to rebut. On cross-examination, however, the prosecutor asked Shue four times about his refusal to give a statement to the authorities. Shue replied each time that he had been exercising his right to remain silent. Id. In closing argument, the prosecutor emphasized that “[Shue] refused to talk to the FBI, refused. And no one ever heard of this preposterous, incredible story of a frame until he hit the witness stand.” Id. at 1128-29. The court held that given these facts, the prosecutor’s use of Shue’s silence was “an obvious reach beyond fair limits to impeach his explanatory story as a recent fabrication.” Id. at 1132.

    Here, no such overreaching occurred. Pennycuff specifically claimed credit not just for general cooperation, but for having answered each of Detective Godan’s questions. (R. at 445.) The prosecutor’s questions to Pennycuff and Detective Godan were relevant to counter the defense claim that Pennycuff openly answered all queries, including those about the calendar entries. After eliciting testimony refuting this claim the prosecutor moved on without belaboring the point. (Id.) In closing argument, the prosecutor referred only briefly to Pennycuff’s failure to explain the calendar entries at his first opportunity. These references were sufficiently related to Pennycuff’s claim of cooperation to qualify as a rebuttal.

    Because the State was entitled to point out and comment upon Pennycuff’s non-responsiveness regarding the calendar, Pennycuff’s counsel was not ineffective for failing to object. Applying the principles of Strickland v. Washington, 466 U.S. 668 (1984), we have held that “a decision to forego perfunctory objections having little chance of success or no direct or substantial relationship to the main thrust of the defense is within the realm of reasonable trial strategy.” Hudson v. State, 496 N.E.2d 1286, 1294-95 (Ind. 1986).

    The risk that such might occur was simply a modest price to pay for the benefit of counsel’s larger strategy of portraying his client as a cooperative fellow who’d been done wrong.

    The question then becomes whether Pennycuff’s counsel was constitutionally ineffective in failing to correct Detective Godan when the detective stated at the trial that Pennycuff gave no response when queried about the calendar.

    Under Strickland, the answer can be yes only if this heat-of-the-battle oversight was objectively unreasonable when viewed without the benefit of hindsight, and if there is a reasonable probability that the jury would have changed its verdict had this clarification occurred. The second prong is dispositive. We deem it highly unlikely that the jurors would have changed their verdict had they believed that Pennycuff dissembled by shaking his head and then muttering a response rather than that Pennycuff failed to answer the question.

    The Therapist’s Hearsay Testimony. Pennycuff claims that his attorney was ineffective in failing to object when T.P.’s therapist gave hearsay testimony, as follows:
Are you still seeing [T.P.]?
Yes, I am.
Did she identify who the culpitraitor [sic] was?
Yes, she did.
What was that?
She stated that it was her father.

(Appellant’s Br. at 19-20, R. at 407.)

    Even assuming that an objection would have been sustained, a failure to object does not constitute ineffective assistance of counsel if the decision to remain silent “could well have been a strategic decision by counsel.” Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998)(citation omitted). Before the therapist testified, T.P. personally and unequivocally testified that Pennycuff repeatedly molested her. In Bannowsky v. State, 677 N.E.2d 1032, 1035 (Ind. 1997) we recognized that a defense attorney might pass up an opportunity for an objection out of a desire to avoid focusing the jury’s attention on a particular statement.

    Here, Pennycuff correctly asserts that the therapist’s statement may have bolstered T.P.’s credibility to some degree. The defense attorney may well have decided, however, to let the brief statement pass unremarked rather than to highlight it with even a sustainable objection. This course of action did not exceed the bounds of reasonable performance by a lawyer, so Pennycuff’s claim fails under the first prong of Strickland.

    The X-Rated Stuff. When the State called Detective Godan to testify about executing the search warrant at Pennycuff’s apartment, she explained that it authorized seizing the calendar, any kind of child pornography, and other pertinent items the victim had told police would be in the apartment (like Polaroid pictures of her in the nude). (R. at 337, 355.) Defense counsel objected to introduction of the whole calendar, and thus only parts were admitted. (R. at 341, 344.)

    On cross-examination, counsel extracted from the detective her acknowledgements that much of what the victim had claimed the police would find in the apartment was not there at all. See footnote

    Over the prosecutor’s objection, the defense managed to elicit the detective’s confirmation that a background check revealed that Pennycuff had never been arrested or recorded as involved in any prior incidents of the sort for which he was on trial. (R. at 356-57.) Presumably anticipating the State’s re-direct, counsel asked whether the officer had found other items, like X-rated videos, magazines, and a collage of movie stars in various stages of dress. (R. at 357, 360.) These were all in the apartment on the day of Pennycuff’s wedding, counsel observed. (R. at 357.) Yes, said the officer. (Id.)
    
    On re-direct, the State offered up the collage, a reasonably inoffensive item, and the defense had no objection. (R. at 359.) The prosecutor asked whether the detective drew any inferences from the materials about Pennycuff and pedophilia based on her experience as a detective in the field. (R. at 361.) Defense counsel objected, more than once, to this effort, such that the prosecutor eventually abandoned it. (R. at 361-66.) The prosecutor moved instead to admit a magazine named Hawk, cover story “Mickey’s such a naughty young girl.” (R. at 367, 371.) It bore descriptions such as “Purely 18 – The Innocent Babes You Crave!” and “The youngest babes allowed by law!” (R. at 371.) Defense counsel forcefully objected. (R. at 367-68.) The prosecutor said she was entitled to use these to rebut the defense’s suggestion that Pennycuff was a “good guy” with “no, you know, criminal history.” (R. at 368.) The court overruled the objection. (R. at 369.)

    Pennycuff contends his lawyer was ineffective for asking the detective about the tapes and magazines, (Appellant’s Br. at 14-15), but it seems that counsel’s objective was to emphasize that much of what the victim had said to the police turned out to be unverifiable and to blunt the effect of the videos and collage by noting that Pennycuff did not take any effort to hide them, even from his new wife. As for Hawk, the magazine featuring pubescent girls, counsel worked hard at keeping it out, but the court saw it as relevant to the charge and the general defense that the victim was lying about Pennycuff’s sexual interest in his young daughter.

    All in all, we are not persuaded that Pennycuff has overcome the presumption that his lawyer performed reasonably well on this score.
    
    The Sexual Device. During direct examination, the prosecutor questioned T.P. as follows:
    Q.    Now, [T.P.], did your father ever ask you to use any sexual toys?
    A.    Yes, he did.
    Q.    Do you—tell—tell the jury what he did.
    A.    It was right before the divorce. He was going through a box of personal items that him and my mother had had. He pulled out a dildo and asked me if I would be interested in using it. And I told him no. I never used it. . . .
    Q.    I’m going to show you what’s been marked for identification purposes as State’s Exhibit One and ask you to identify this for the jury.
    A.    That is the dildo he asked me if I would like to use.

(R. at 236.) Pennycuff claims ineffective assistance because his defense counsel did not object to admission of the sexual device into evidence. (Appellant’s Br. at 17.)

    Pennycuff has not shown that he suffered prejudice over this failure to object. T.P.’s mother testified that she purchased the device while married to Pennycuff, because Pennycuff experienced difficulty getting an erection. (R. at 399.)

    The introduction of the device served to bolster Pennycuff’s arguments, i.e. that he suffered from impotence and was therefore physically incapable of having done some of the things his daughter described. (R. at 715, 719.) Nonetheless , T.P.’s testimony about Pennycuff’s inappropriate offer certainly painted Pennycuff in an unflattering light. We accept Pennycuff’s claim that most lawyers would have objected, and that it was error not to do so. Pennycuff has not shown, however, that any damage outweighed the benefit he received in increased credibility regarding his claim of impotence. This claim therefore fails under the second prong of Strickland.

    A Cumulative Recap. Errors by counsel that are not individually sufficient to prove ineffective representation may add up to ineffective assistance when viewed cumulatively. Williams v. State, 508 N.E.2d 1264, 1268 (Ind. 1987) (citation omitted). Here, however, that is not the case. Defense counsel’s handling of the issues related to Pennycuff’s non-responsiveness to the calendar question, to the therapist’s hearsay testimony, and to the pornography collection all fell within the range of reasonable trial performance. Counsel’s only error was in failing to object to introduction of the sexual device, so our conclusion stands.

    We recently dealt with a very similar claim in Albrecht v. State, 737 N.E.2d 719 (Ind. 2000). In Albrecht, the court gave the same two instructions that were given here, but gave both at the same time. Id. at 730.

    Albrecht claimed, as Pennycuff claims, that the combination of instructions confused the jury. Id., (Appellant’s Br. at 25.) We held otherwise, noting that “[s]imply because the language of the instructions differs, it does not necessarily follow that the definitions are inconsistent or conflicting.” Id. at 731. We found no reasonable likelihood that the different instructions led the jurors to convict Albrecht based upon constitutionally insufficient proof of guilt. Id.

    The gap in time between the two instructions here does not change our conclusion. Pennycuff argues that, because different jurors may have looked to different instructions for guidance, their verdict was not truly unanimous. (Appellant’s Br. at 25-26.) We disagree. Each juror was guided solely by correct statements of the law on reasonable doubt. Due process does not demand that each juror’s subjective view of reasonable doubt be identical. It demands only that each juror require a constitutionally sufficient quantum of evidence to convict. Both the instructions at issue meet this test. Pennycuff’s argument fails.

Jodi Kathryn Stein
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana
    
Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana

DICKSON, J., concurs in Part I.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. If, based upon your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crimes charged, you should find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you should give him the benefit of the doubt and find him not guilty.

(R. at 131.) In Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996), a majority of this Court expressed a preference for the latter instruction. However, acknowledging the differences of opinion within the Court, we specifically declined to require the latter. Id.