Ashley Garth, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Ashley Garth appeals the denial of her petition for post-conviction relief, contending the post-conviction court erred in determining she was not entitled to relief based on newly discovered evidence and ineffective assistance of trial and appellate counsel. Finding no error, we affirm.

Facts and Procedural History

[2] We set forth the following facts in our decision on Garth's direct appeal:

In March 2019, Garth was in an intimate relationship with Garett Kirts. Kirts had also been in an “intimate relationship with [Nicole Bowen] for a few months.” Over the course of two months, Garth, Kirts, and Kirts's friend Jason Palladino had “a couple” of conversations about “getting rid” of Bowen. On March 29, 2019, Kirts, Bowen, and Talitha Beckley were at Palladino's house. Palladino told Kirts that they had “to make a decision” that Bowen “has to go” and that “it's got to be done.” At that point, Kirts drove Bowen and Beckley in Bowen's car to a trailer in Kentland where Garth was.

Once at the trailer, Bowen and Kirts sat on the couch and used methamphetamine. Garth came out of a bedroom and “exchanged words” with Bowen, which escalated “into a fist fight.” Kirts stood up and “wrapped [Bowen] into a chokehold from behind until [she] collapsed.” Kirts yelled at Garth to hand him an extension cord, which she did. Kirts tied the cord around Bowen's neck and handed it back to Garth. “[Garth] pulled on it so tight that the extension cord broke.” Garth helped Kirts lift up the couch, and Kirts tied the extension cord under it. Kirts also then tied a scarf around Bowen's neck. Kirts got a roll of tape and trash bags and taped Bowen up in a trash bag. Kirts took the body to Bowen's car, drove the car to pick up a friend, and continued to drive around with his friend looking for a spot to dispose of Bowen's body. They saw an empty semitrailer and placed the body inside. They then returned to the trailer and got high with Garth.

On March 30, 2019, the owner of the property on which the semitrailer was located visited his property. He saw a body inside the semitrailer and called 911. Police discovered Bowen's body wrapped in a blanket and secured with different types of tape. When the police removed the blanket the following day, they found a plastic bag over Bowen's head, her wrists taped together behind her back, and a scarf tied around her neck. Under the scarf, an electrical cord was tied around her neck. After the electrical cord was removed, ligature marks on Bowen's neck were visible. An autopsy indicated that the cause of death was neck compression and ligature strangulation. DNA testing indicated strong support for the proposition that Garth was a contributor to the DNA profile found on a cardboard tube discovered with Bowen's body, very strong support for the proposition that Garth was a contributor to the DNA on Bowen's fingernail scrapings, and limited support for the proposition that Garth was a contributor to the DNA profile found on the scarf tied around Bowen's neck. DNA testing was also performed on the electrical cord but was inconclusive.

Garth v. State, 182 N.E.3d 905, 910-11 (Ind. Ct. App., Jan. 31, 2022) (internal citations to the record omitted), trans. denied.

[3] The State charged Garth with murder, Level 1 felony conspiracy to commit murder, Level 5 felony assisting a criminal, and Level 5 felony involuntary manslaughter. Kirts was also charged with murder. See Cause No. 56D01-1904-MR-000367. In January 2021, Kirts pleaded guilty pursuant to a plea agreement and was sentenced to fifty-five years.

[4] Garth's jury trial was held from May 17 to 21, 2021, at which she was represented by Attorney Lori. S. James. At trial, Kirts testified for the State. During his cross-examination, Attorney James sought to admit a letter Kirts wrote to Garth after the murder. The State objected, and the trial court initially ruled the letter was not admissible. Attorney James then made an offer to prove, which was not transcribed. The trial court did allow Attorney James to question Kirts about the letter, and in doing so she read portions aloud to the jury.

[5] Kirts also testified Bowen was wearing a white hat when she died and that “[Garth] took it” following the murder. Prior Case Tr. Vol. III p. 32. The State referenced the hat in its closing statement, stating “Killers keep trophies ․ Was the Defendant's trophy Garett Kirts? Or was it the hat?” Id. at 217.

[6] The jury found Garth guilty of murder, conspiracy to commit murder, and assisting a criminal, but not guilty of involuntary manslaughter. The court sentenced Garth to an aggregate forty-eight years in the Indiana Department of Correction. In late 2021, Garth filed her direct appeal, again represented by Attorney James. Attorney James brought nine claims, including that the trial court abused its discretion in excluding Kirts’ letter. A copy of the letter was not included in the appellate record. We affirmed, finding in part that the trial court did not abuse its discretion in excluding Kirts’ letter. See Garth, 182 N.E.3d at 913.

[7] In February 2022, Garth filed a petition for post-conviction relief. A year later, while Garth's petition was still pending, the State charged Kirts with murder, auto theft, and theft, relating to the death of Charles Hanish. See Cause No. 91C01-2302-MR-1. Hanish was murdered by ligature strangulation on March 13, 2019, approximately two weeks prior to Bowen's murder. In February 2024, Kirts pleaded guilty to the murder of Hanish. Thereafter, Garth filed an amended petition for post-conviction relief, alleging Kirts’ conviction constituted newly discovered evidence and that Attorney James was ineffective in not “present[ing] evidence at trial that Garth already owned and had worn a white cap prior to Bowens’ [sic] death to contradict testimony from Kirts” and in not including Kirts’ letter to Garth in the appellate record. App. Apx. Vol. II p. 70.

[8] The post-conviction court held a hearing in November 2024. At the hearing, Attorney James testified regarding the white hat. Specifically, she testified that she was “surprise[d]” by this testimony as Kirts had not “talked about that at all in his pretrial statements[.]” Tr. Vol. II p. 20. Attorney James went on to explain that she was not able to investigate the allegations regarding the hat because each day of trial “would go until deep in the evening” but that Garth did tell her “she had owned that hat for years prior” to Bowen's murder. Id. at 21. Attorney James further stated that, at the time, she did not have any evidence to refute Kirts’ claim. Garth's father also testified at the post-conviction hearing and provided a photo of Garth wearing a white hat prior to the murder. He stated neither he nor other family members approached Attorney James about the hat during trial because “we didn't see a connection.” Id. at 50.

[9] After the hearing, the court denied Garth's petition. Garth now appeals.

Discussion and Decision

[10] The petitioner in a post-conviction proceeding must prove the grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Garth is appealing a negative judgment; therefore, she must show the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. While we do not defer to the post-conviction court's legal conclusions, “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.” State v. Damron, 915 N.E.2d 189, 191 (Ind. Ct. App. 2009), reh'g denied, trans. denied.

I. Newly Discovered Evidence

[11] Garth first challenges the post-conviction court's denial of her petition on the basis of newly discovered evidence. The discovery of new evidence mandates a new trial when a defendant demonstrates that: (1) the evidence has been discovered since 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) it 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 trial. Whedon v. State, 900 N.E.2d 498, 504 (Ind. Ct. App. 2009), trans. granted, summarily aff'd. “We ‘analyze[ ] these nine factors with care, as the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.’ ” Id. (quoting Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006)). “The burden of showing that all nine requirements are met rests with the petitioner for post-conviction relief.” Id. (emphasis in original). Because “the nine factors are written in the conjunctive,” we need now only address the one which we find dispositive: whether the alleged newly discovered evidence is not merely impeaching. Reeves v. State, 174 N.E.3d 1134, 1143 (Ind. Ct. App. 2021), trans. denied.

[12] “ ‘Impeachment’ is defined as ‘[t]he act of discrediting a witness, as by catching the witness in a lie or by demonstrating that the witness has been convicted of a criminal offense.’ ” Taylor, 840 N.E.2d at 330 n.1 (quoting Black's Law Dictionary 768 (8th ed. 2004)). The post-conviction court found Kirts’ conviction for the murder of Hanish to be merely impeaching evidence, and we agree. It does nothing more than undermine Kirts’ credibility and is not freestanding evidence of Garth's innocence. Garth does not offer an alternative use for this evidence, instead simply emphasizing its impeachment value. See Appellant's Br. p. 29 (postconviction evidence would go “much further in destroying Kirts’ credibility”); see also id. at 22 (“Evidence that Kirts killed not just one person but two by ligature strangulation, that Kirts had an independent motive to kill Bowen and that Kirts falsely accused other men in killing Hanish destroys the credibility of his testimony[.]”) (emphasis added).

[13] Yet Garth argues this evidence is not merely impeaching because it “destroys or obliterates” Kirts’ testimony. Appellant's Br. p. 22. “Evidence that destroys or obliterates the testimony upon which a conviction was obtained is not appropriately considered as merely impeaching evidence.” Reeves, 174 N.E.3d at 1143. For example, we have found a witness's recantation of their testimony to be not merely impeaching. See Wilson v. State, 677 N.E.2d 586, 588-89 (Ind. Ct. App. 1997). But that is not the case here. Kirts’ subsequent conviction for Hanish's murder does not contradict his testimony in this matter, let alone “obliterate” it. Rather, it simply calls into question the veracity of his statements. As such, it is mere impeaching evidence. See McVey v. State, 863 N.E.2d 434, 446 (Ind. Ct. App. 2007) (evidence was merely impeaching as it “merely serve[d] to cast doubt on [witness’] trial testimony” and “place her credibility at issue”), trans. denied. The postconviction court did not err in denying Garth relief based on newly discovered evidence.

II. Ineffective Assistance of Trial Counsel

[14] Garth next contends the post-conviction court erred in finding her trial counsel was not ineffective. To prevail on a claim of ineffective assistance of counsel, Garth must show both that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced her. Coleman v. State, 694 N.E.2d 269, 272 (Ind. 1998) (citing Strickland v. Washington, 466 U.S. 668 (1984)). There is a strong presumption counsel rendered adequate assistance. Id. “Evidence of isolated poor strategy, inexperience or bad tactics will not support a claim of ineffective assistance.” Id. at 273. “Counsel's performance is evaluated as a whole.” Lemond v. State, 878 N.E.2d 384, 391 (Ind. Ct. App. 2007), trans. denied. To establish prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App. 2002), trans. denied.

[15] Garth asserts Attorney James was deficient in failing to “present evidence at trial that Garth was wearing her own white hat and was not wearing a white hat taken from the victim.” Appellant's Br. p. 36. However, it is unclear what evidence Garth believes Attorney James should have produced. At the post-conviction hearing, Garth presented a photograph of her wearing a white hat prior to the murder and the testimony of her father asserting she had the hat and wore it often. But it does not appear this evidence was available to Attorney James, who testified she had no evidence at the time of trial to rebut Kirts’ claim. And Garth's father confirmed that neither he nor other family members approached Attorney James during the trial about this.

[16] To the extent Garth is arguing Attorney James was deficient in not discovering this rebuttal evidence, we cannot agree. The white hat was not mentioned prior to Kirts’ testimony, and its significance in a five-day murder trial appeared minor until the State emphasized it in its closing statement. Attorney James testified she had little time to investigate the matter, given trial had already begun and extended into the evening hours each day. We must assess Attorney James’ performance “based on facts known at the time” not based on “hindsight.” Curtis v. State, 905 N.E.2d 410, 414 (Ind. Ct. App. 2009), trans. denied. Garth has failed to show Attorney James’ trial performance fell below an objective standard of reasonableness.

III. Ineffective Assistance of Appellate Counsel

[17] Garth also contends Attorney James was ineffective on direct appeal.¹ The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in his performance and that the deficiency resulted in prejudice. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied. Our Supreme Court has recognized three types of ineffective assistance of appellate counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001), cert. denied. Garth argues Attorney James was ineffective in not including the necessary evidence—namely Kirts’ letter—in the appellate record. Thus, her claim falls in the third category.

[18] “Claims of inadequate presentation of certain issues ․ are the most difficult for convicts to advance and reviewing tribunals to support.” Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997). This is true for two reasons. Id.

First, these claims essentially require the reviewing tribunal to re view specific issues it has already adjudicated to determine whether the new record citations, case references, or arguments would have had any marginal effect on their previous decision. Thus, this kind of ineffectiveness claim, as compared to the others mentioned, most implicates concerns of finality, judicial economy, and repose while least affecting assurance of a valid conviction.

Second, an Indiana appellate court is not limited in its review of issues to the facts and cases cited and arguments made by the appellant's counsel. We commonly review relevant portions of the record, perform separate legal research, and often decide cases based on legal arguments and reasoning not advanced by either party.

Id. As such, an ineffectiveness challenge resting on counsel's presentation of a claim must overcome the strongest presumption of adequate assistance. Id. at 196. “Relief is only appropriate when the appellate court is confident it would have ruled differently.” Id.

[19] On direct appeal in this matter, Attorney James asserted the trial court erred in excluding Kirts’ letter. Specifically, she argued the letter was a recorded recollection and therefore admissible under an exception to the hearsay rule. However, the letter was not included in the appellate record. Garth now asserts the failure to include the letter or other substantive evidence of its contents amounted to deficient performance.²

[20] However, Garth does not argue that, had Attorney James included the letter, the results of the appeal would have been different. Nor can we find as such. As an initial matter, we note that a portion of the letter was read at trial and therefore available for our review via the transcript on direct appeal. See Prior Case Tr. Vol. III p. 41. Furthermore, even without the letter, we were able to conduct a full, meritorious review of the issue. See Garth, 182 N.E.3d at 912-13. Garth's claim on direct appeal was that the letter was admissible as a recorded recollection. The focus on appeal was thus on Kirts’ testimony and whether he was unable to recall “fully and accurately” as required for the exception. See Ind. Evidence Rule 803(5). We determined that, based on Kirts’ “detail[ed]” testimony, the recorded recollection exception did not apply. Garth, 182 N.E.3d at 913. The contents of the letter do not change this.³ As such, it is unlikely we would have ruled differently had the letter been included in the appellate record, and relief is not warranted.

[21] Affirmed.

FOOTNOTES

1.   The State argues Garth has waived her claim of appellate ineffective assistance of counsel because she “made no argument in her proposed findings of fact and conclusions of law regarding the prejudice she suffered because of appellate counsel's alleged deficient performance[.]” Appellee's Br. p. 35. While failure to assert a claim to the post-conviction court may constitute waiver, see Isom v. State, 170 N.E.3d 623, 654 (Ind. 2021), the post-conviction court did not find so here, instead addressing Garth's appellate ineffective assistance of counsel claim on the merits. We will do the same.

2.   It is unclear whether Attorney James had access to the letter at the time of appeal. She testified at the post-conviction hearing that all proposed exhibits, including the letter, were given to the court reporter during trial and she did not know what happened to it after that. And although she apparently made an offer to prove, it was not transcribed. Garth acknowledges this in her brief but contends Attorney James could still have provided such evidence to the appellate court through a verified statement as laid out in Indiana Appellate Rule 31(A). And notably Garth's post-conviction attorney was able to get a copy of the letter. See Ex. Vol. I pp. 66-67. The State concedes “there were methods available for counsel to put the full letter in front of the Court” but does not elaborate on these methods. Appellee's Br. p. 37. For argument's sake, we will presume Attorney James could have included the evidence in some form in the appellate record.

3.   On direct appeal, Garth also argued the letter should have been admitted under two other hearsay exceptions. We found both claims to be waived, one due to lack of cogent argument and one due to failure to assert the argument to the trial court. Neither waiver is affected by the omission of the letter in the appellate record, so again we cannot say we would have ruled differently.

Scheele, Judge.

Judges Foley and Kenworthy concur. Foley, J., and Kenworthy, J., concur.