PARKER v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] In 2021, a jury found Courtney Parker guilty of Level 4 felony arson, Level 5 felony stalking, Class A misdemeanor invasion of privacy, and Class B misdemeanor criminal mischief. The trial court entered judgment of conviction for arson and stalking and sentenced Parker to an aggregate term of fifteen years. Parker appealed, challenging only the sufficiency of evidence supporting the stalking conviction. A panel of this Court affirmed.

[2] In an amended petition for post-conviction relief (“PCR”) filed in 2024, Parker alleged he was denied the effective assistance of appellate counsel in his direct appeal. The post-conviction court disagreed and denied Parker's PCR petition. Parker appeals, raising one issue: Did the post-conviction court clearly err when it determined Parker's appellate counsel did not render ineffective assistance by failing to raise an issue of fundamental error on direct appeal? We affirm.

Facts and Procedural History

[3] In 2010, Parker and Patricia Torres began dating and subsequently had a child together. Parker and Patricia separated, and in April 2017, Patricia moved in with her sister, Melisa Torres, and Melisa's boyfriend, Alex Vasquez. Melisa rented a house that belonged to her uncle, Rene Torres. Soon after Patricia moved in, the housemates began “to have trouble with Mr. Parker[.]” Trial Tr. Vol. 7 at 101.

[4] Parker engaged in several acts targeting Patricia over the course of the next month. One of these acts is relevant to this appeal:

In the early morning of April 22, Melisa awoke to what sounded like an explosion, “like a boom.” Trial Tr. Vol. 7 at 111. She looked out her bedroom window and saw that the detached garage was on fire. Melisa screamed at Patricia to call 911. After the fire department extinguished the fire, they determined that Alex's car parked next to the detached garage had been set on fire and that the fire then spread to the garage and part of a neighbor's fence. Melisa's neighbors had surveillance cameras set up directly across from her garage. Melisa reviewed the footage from the cameras and identified Parker. Detective Ryan Gleason with the Hammond Police Department reviewed the video footage and observed Parker going behind Alex's car near the gas tank area and then backing away from the car, at which point flames came out from underneath the car. Parker phoned Patricia later that morning and said, “Oh I heard it's really hot out there in Hammond[,]” even though it was actually not “hot that day.” Id. at 12-13.

Parker v. State, 21A-CR-2249, at *1 (Ind. Ct. App. May 17, 2022) (mem.), trans. denied.

[5] In May 2017, the State charged Parker with eight counts.¹ Counts 1, 5, and 6 are of interest here, all alleging arson:

[Count 1 – Arson Level 4 Felony:] [O]n or about April 22, 2017, ․ Parker did, by means of fire, explosive or destructive device, knowingly or intentionally damage property of Rene Torres without his consent and which resulted in a pecuniary loss to Rene Torres in an amount of at least five thousand dollars ($5,000.00)[.]

[Count 5 – Arson Level 6 Felony:] [O]n or about April 22, 2017, ․ Parker did, by means of fire, explosive or destructive device, knowingly or intentionally damage property of Rene Torres without his consent and which resulted in pecuniary loss to Rene Torres in an amount of at least two hundred fifty dollars ($250.00) but less than five thousand dollars ($5,000.00)[.]

[Count 6 – Arson Level 6 Felony:] [O]n or about April 22, 2017, ․ Parker did, by means of fire, explosive or destructive device, knowingly or intentionally damage property of Alex Vasquez without his consent and which resulted in pecuniary loss to Alex Vasquez in an amount of at least two hundred fifty dollars ($250.00) but less than five thousand dollars ($5,000.00)[.]

Trial App. Vol. 2 at 64–65.

[6] At a September 4, 2019, hearing on a defense motion, Parker said, “I'm taking over. I will be relieving” counsel. Trial Tr. Vol. 2 at 8. The trial court allowed Parker to proceed pro se. Ten days later, the parties appeared in court for another hearing. During that hearing, the State filed an amended information charging only one count of arson.² To explain the change, the State said:

There's been some consolidation, Judge. Originally Count [1] was arson as a Level 4 felony with damage in excess of $5,000 and one listed victim, Rene Torres. And there were two subsequent Level 6 felony arson charges, one for Rene Torres and one for a second arson victim Alex Vasquez․ So Counts [5] and [6] have been merged into Count [1] for one Level 4 felony arson. That's one act, one fire and one set of damage. It's a cleaner way for the jury to review it. It changes none of the material elements of the case, just list the two victims together on one count and one criminal act.

Id. at 101–02. The trial court asked Parker if he understood the changes. Parker replied:

Mr. Parker: Yes, your Honor. I appreciate that.

The Court: Do you wish to have any further discussion on the changes in the amended information?

Mr. Parker: No, your Honor. It saves me some time from filing motions in regards to the extensive amount of charges – the charges being stacked. So I'm appreciative and I thank [the State] for doing so.

Id. at 103. The amended Count 1 read:

[O]n or about April 22, 2017, ․ Parker did, by means of fire, explosive or destructive device, knowingly or intentionally damage property of Rene Torres and Alex Vasquez without their consent and which resulted in a pecuniary loss to Rene Torres and Alex Vasquez in an amount of at least five thousand dollars ($5,000)[.]

Trial App. Vol. 3 at 95 (emphasis added).

[7] Parker represented himself at his four-day jury trial (with standby counsel). The trial court read the amended Count 1 arson charge to the jury during preliminary instructions. As part of an instruction on reasonable doubt, the trial court also informed the jury: “Your verdict must be unanimous.” Trial App. Vol. 5 at 109.

[8] Alex testified about his car and said he had been thinking about selling it before the fire. Kelley Blue Book estimated the car was worth between $2,000 and $2,500, but he was going to list it for $3,500. Alex also said he had some furniture in the garage he was going to sell for “a couple hundred dollars” but he had to “junk[ ] it” because it was “smoked and burnt.” Trial Tr. Vol. 6 at 40. Alex and Melisa had to replace the neighbor's fence and trash bins that were also damaged by the fire. The cost of the lumber for the fence was $181, and the trash cans cost approximately $200 to replace.

[9] Rene Torres testified about the damage to the garage. He had to pay $499 to the city building inspection department for boarding up the garage pending repairs. He had to pay a $94 building permit fee to have the garage repaired. Rene testified he wrote three checks to his contractor to pay for the repairs, but he could only find two receipts. Those two receipts added up to $3,821.22, but Rene said he paid a total of “$5081 and change.” Trial Tr. Vol. 7 at 176. The State introduced as an exhibit a letter from Rene's insurance company stating the “actual cash value of your structural repairs” is $5,081.63. Trial Ex. Vol. 1 at 33.

[10] In its closing argument, the State laid out its proof for Level 4 felony arson:

So let's go through the elements of the charges. Arson as a Level 4 felony. A fire that caused $5,000 in pecuniary loss to Rene Torres and Alex Vasquez.

Rene Torres testified that the repairs to his garage cost $5,081, 1,000 of which was his deductible. He doesn't have all the receipts for his payments to [his contractor]. So Mr. Parker wants you to look only at the receipts.

Now, the State's done both. Assuming Rene Torres testified truthfully—and the State has no reason to believe he didn't—when you add together the board-up fee, the permit fee and the repair cost, the damage to Rene Torres was $5674. If you want to take Mr. Parker's math and use just ․ what's contained in the bank statements, that's $3,821.22 in those two payments—again, that's missing one—$499 board-up fee, $94 permit fee, you come to $4,414 dollars. This is before you include Alex Vasquez's car contained in the same charge.

Alex Vasquez testified that he wanted to sell that car. That it had a Kell[e]y blue book value of somewhere between 2,000 and 2,500. Although he wanted to sell it for a little more than that.

Ladies and gentlemen of the jury, if you find that car to be worth at least $600—well below the stated blue book value that Alex Vasquez looked up—all it takes is $600 to push this over the $5,000 mark to give you a Level 4 felony arson. That's assuming everything most beneficial to Mr. Parker. And we still haven't addressed the costs [for] repairs to the fence of [the neighbor] ․ We still haven't addressed the costs of the property inside [the garage] that was thrown out[.] ․ We still haven't addressed the trash cans.

Trial Tr. Vol. 9 at 61–63.

[11] In his own closing argument, Parker argued the State “failed to show the defendant cause[d] damage beyond $5,000.” Id. at 70. He specifically challenged the amount on the basis the victims “have not produced any receipts to reach the amount of $5,000.” Id. at 92. Although Parker challenged the total amount of damage proved, he did not argue that combining Rene and Alex's damages was improper.

[12] During discussion about the final instructions, Parker did not object to the trial court's general unanimity instruction or request a specific unanimity instruction. As part of the final instructions, the trial court again read the arson charge to the jury, gave the jury an elements instruction,³ and informed the jury its verdict must be unanimous.

[13] The jury found Parker guilty of all charges but Level 6 felony stalking. The trial court entered judgment of conviction for arson and Level 5 felony stalking and sentenced Parker to consecutive terms of ten years for arson and five years for stalking.

[14] On direct appeal, Parker was represented by Kristin Mulholland of the Appellate Division of the Lake County Public Defender's office. Parker raised one issue: whether there was sufficient evidence to support the stalking conviction. A panel of this Court affirmed. Parker, No. 21A-CR-2249, at *3.

[15] Parker filed a pro se PCR petition (later amended by counsel) alleging ineffective assistance of appellate counsel. Specifically, Parker claimed Mulholland was ineffective for failing to argue on direct appeal that the trial court committed fundamental error when it did not give a specific jury unanimity instruction with respect to the arson conviction. The post-conviction court held a hearing at which Mulholland testified. Mulholland stated she did not “believe” she considered raising the jury unanimity instruction issue and did not “really recall” if she was aware at the time of the appeal of two specific cases Parker claimed were on point. PCR Tr. Vol. 2 at 10–11.⁴ She stated, though, that because Parker did not object to the filing of the amended information or request a specific unanimity instruction, she would have had to argue fundamental error and that “always is a more difficult burden to reach.” Id. at 12. But she said if there was “an issue that would result in reversal even if fundamental error,” she would raise it. Id. at 13.

[16] The post-conviction court issued findings of fact and conclusions of law denying Parker's PCR petition. The court found Parker failed to establish appellate counsel's representation fell below professional norms or that he was prejudiced by the representation:

12. The crux of [Parker's] argument is that because the State amended the Information to combine the losses to Rene Torres and Alex Vasquez, the jury should have been instructed that they had to unanimously agree on the loss amount in order to convict on the Level 4 Arson count. [Parker] argues that the State further muddied the water by arguing that the neighbor's losses could be included in the amount needed to constitute the Level 4 felony. Additionally, [Parker] argues that due to the combination of victims in Count [1], when that Count actually contains two offenses—one arson for each stated victim, that there is no way to determine which of those two offenses [Parker] was convicted of, and whether the verdict on that one offense was unanimous.

13. The Court notes, as stated above, that [Parker] did not object to the amended Information, and further that [Parker] did not request a specific unanimity instruction. Therefore, the issue is waived.

14. To overcome the finding of waiver, [Parker] would have to prove that appellate counsel was ineffective for failing to raise the issue of lack of jury unanimity as fundamental error.

15. The jury was specifically instructed that before [Parker] could be convicted of the Level 4 arson, the State must have proved

1. The defendant

2. by means of fire, explosive or destructive device,

3. knowingly or intentionally

4. damaged property of Rene Torres and Alex Vasquez without their consent,

5. and which resulted in a pecuniary loss to Rene Torres and Alex Vasquez in the amount of at least five thousand dollars.

․ The jury was instructed that their verdict must be unanimous. Finally, the jury was instructed that the arguments of counsel are not evidence, and that the Court's instructions are the best source for determining the law. There is no basis to assume that the jury was in any way confused about their obligation to unanimously agree that the pecuniary loss to Rene Torres and Alex Vasquez amounted to at least five thousand dollars before they could find [Parker] guilty in Count 1.

16. The question that remains is whether it was fundamental error to combine the losses to Rene Torres and Alex Vasquez to arrive at the requisite minimum five thousand dollar loss, or whether that count should have been severed into two counts․ The combination of both Mr. Torres and Mr. Vasquez in Count [1] did not constitute fundamental error, and it is highly unlikely that the issue would have prevailed on appeal.

17. Therefore, [Parker] has failed to establish that Appellate Counsel's representation fell below professional norms, or that [Parker] was prejudiced by that representation.

Appellant's App. Vol. 2 at 135–36.

The post-conviction court's order denying relief is not clearly erroneous.

Standard of reviewing a court's post-conviction relief decision

[17] Post-conviction proceedings are civil proceedings in which a petitioner may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied. The scope of potential post-conviction relief is limited to issues unknown at trial or unavailable on direct appeal. See Gibson, 133 N.E.3d at 681.

[18] Indiana Post-Conviction Rule 1(6) requires the post-conviction court to make findings of fact and conclusions of law supporting its judgment. We will reverse the findings and judgment “only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). We do not reweigh evidence or judge witness credibility. See Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (explaining the post-conviction court is the “sole judge of the evidence and the credibility of the witnesses”) (citation omitted), cert. denied. When reviewing an order denying post-conviction relief, we accept the findings of fact unless they are clearly erroneous, but we give no deference to the court's legal conclusions. Id. Where, as here, the petitioner is appealing from a negative judgment denying post-conviction relief, he “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Gibson, 133 N.E.3d at 681.

[19] “For a party to preserve a claim for review, we generally require that party to object to the trial court's ruling and to state the reasons for that objection.” Bradley v. State, 248 N.E.3d 563, 573 (Ind. 2024). A party's failure to object to an alleged trial error results in waiver on appeal for failure to preserve the claim of error. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). Here, Parker acknowledges he waived any direct claim of instructional error because he did not object to the trial court's general unanimity instruction or tender his own specific unanimity instruction at trial. See Appellant's Br. at 26; see also Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011) (defendant's failure to object to an instruction or tender one of his own waives any challenge to the instruction on appeal).

[20] A party can raise an otherwise waived issue through a showing of fundamental error, see Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013), but Parker's appellate counsel did not raise this issue as fundamental error on direct appeal. As fundamental error cannot be raised in post-conviction proceedings as a standalone claim, Parker has framed his post-conviction claim as one of ineffective assistance of appellate counsel. See Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (stating the fundamental error exception to the contemporaneous objection rule applies only to direct appeals and in 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”). Specifically, Parker alleged in his petition for post-conviction relief that the trial court committed fundamental error at his trial by failing to provide a specific unanimity instruction to the jury regarding his arson charge in the absence of an objection and that his appellate counsel was ineffective for failing to raise the fundamental error issue in his direct appeal.

[21] In essence, Parker, who represented himself at trial, seeks to avoid the effect of his own personal waiver of this issue by holding the trial court and his appellate counsel accountable in this post-conviction proceeding. We are mindful in addressing Parker's claim that post-conviction proceedings do not afford the petitioner a super-appeal, Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999), cert. denied, and the fundamental error doctrine is not to be used as a “safe harbor” for defendants who fail to raise proper and timely objections at trial, Haynes v. State, 695 N.E.2d 148, 152 (Ind. Ct. App. 1998), trans. denied.

Standard of reviewing a claim of ineffective assistance of appellate counsel

[22] The Sixth Amendment to the United States Constitution confers “the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). As the United States Supreme Court explained in Strickland: “The benchmark for judging any claim of ineffectiveness [is] whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id.

[23] The general standard of review for a claim of ineffective assistance of appellate counsel is the same as a claim for ineffective assistance of trial counsel. Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001), cert. denied. We begin with a strong presumption that counsel rendered adequate legal assistance. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied. To prevail on an ineffective assistance of counsel claim, the petitioner “must show both deficient performance and resulting prejudice.” Allen, 749 N.E.2d at 1166. “[I]f we can dispose of a claim of ineffective assistance of counsel by analyzing the prejudice prong alone, we will do so.” Burnell v. State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018).

[24] Claims that appellate counsel were ineffective fall into three general categories of constitutionally deficient performance: “(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014). Parker contends his appellate counsel's performance was deficient when she “failed to recognize the juror unanimity issue on the record when it was significant and obvious” and claims he was prejudiced as a result “because had counsel raised a fundamental error claim based on the trial court's failure to ensure juror unanimity, the issue would have prevailed, and his level 4 arson conviction would have been reversed.” Appellant's Br. at 16–17. Parker's claim therefore fits into the second category.

[25] The identification of what issues to raise on appeal is one of the most important decisions appellate counsel makes, and we are highly deferential to counsel's strategic choices to exclude certain issues in favor of others “unless such a decision was unquestionably unreasonable.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied. A finding of ineffective assistance of appellate counsel for failing to raise an issue is “very rarely found.” Id. at 193. “[A]ppellate and trial counsel have different tasks, which result in different kinds of deficient performance and prejudice.” Benefield v. State, 945 N.E.2d 791, 802 (Ind. Ct. App. 2011). To evaluate the performance prong when appellate counsel failed to raise an issue on appeal, we ask: (1) was the unraised issue significant and obvious from the face of the record, and (2) was the unraised issue “clearly stronger” than the raised issues? Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013). If the petitioner demonstrates deficient performance, we then look to “whether the issues appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial.” Ritchie v. State, 875 N.E.2d 706, 724 (Ind. 2007).

[26] If an unpreserved error is not fundamental, then appellate counsel cannot be ineffective for failing to raise it. Benefield, 945 N.E.2d at 803. Accordingly, we address first whether the trial court committed fundamental error “by not instructing the jury it had to reach a unanimous verdict[.]” Appellant's Br. at 6.

The trial court did not commit fundamental error by failing to give a specific jury unanimity instruction.

[27] Fundamental error is an extremely narrow exception to the waiver rule where the appellant faces the heavy burden of showing the alleged errors are so prejudicial to their rights as to “make a fair trial impossible.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002). To establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because the alleged error constitutes a clearly blatant violation of basic and elementary principles of due process and presents “an undeniable and substantial potential for harm.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). “The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether [the defendant's] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.” Id. (internal quotation omitted). “Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.

[28] It is important to note at the outset what is not at issue in this case. Parker contends the possibility of a non-unanimous jury verdict and need for a specific unanimity instruction was created when the State amended the charging information for Level 4 arson to allege two distinct crimes—one arson against Rene and one arson against Alex. Parker's argument in support of requiring a specific jury unanimity instruction therefore includes an assertion that the charge itself was bad for duplicity. A single count of a charging information may allege only a single offense; when one count alleges two or more separate offenses, duplicity occurs. Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010), trans. denied. “Duplicity is unacceptable because it prevents the jury from deciding guilt or innocence on each offense separately and may make it difficult to determine whether the conviction rested on only one of the offenses or both.” Id. (citation and quotation marks omitted).

[29] Parker cites Mathews v. State for the proposition that Count 1 improperly alleged two offenses. See Appellant's Br. at 21–22. In addressing whether and to what extent multiple convictions and sentences are allowed for a single act of setting a fire, the Supreme Court in Mathews said, “[b]ecause the arson statute defines the crime [of arson] in terms of damage to property,” “[a] fire damaging properties owned by multiple persons can ․ produce multiple crimes.” 849 N.E.2d at 587. Assuming Parker is correct that Mathews means the State should not have consolidated Counts 1, 5, and 6 into a single count,⁵ an objection to an information on the ground of duplicity must be made through a pre-trial motion to dismiss and cannot be made for the first time on appeal. Ind. Code § 35-34-1-4(a)(2) (providing that a defective information, including for reasons of misjoinder of offenses or duplicity of allegations, is subject to a motion to dismiss); Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994) (holding where duplicity was not raised in a motion to dismiss, “it cannot now constitute a basis for reversal”). Parker did not move to dismiss or otherwise object to the State's amendment that resulted in an allegedly duplicitous charge of arson. In fact, Parker welcomed the amendment. See supra ¶ 6. Whether or not the case should have been charged as it was, any error in allowing the amendment was not preserved and could be raised only as fundamental error. But Parker has not claimed his appellate counsel was ineffective for not raising duplicity in the charging instrument as fundamental error on direct appeal. The charge as amended stands as the appropriate basis for considering the instructional issue.

[30] Turning to the instructions, a jury must unanimously agree regarding which crime a defendant committed. State v. Sturman, 56 N.E.3d 1187, 1203 (Ind. Ct. App. 2016). In certain cases, jurors must be given a specific instruction that they must unanimously agree the defendant committed one particular offense. A unanimity problem may exist where there is a disjunctive charge, see Lainhart v. State, 916 N.E.2d 924, 941–42 (Ind. Ct. App. 2009) (holding it was error for the trial court not to give a specific unanimity instruction where the State charged the defendant with one count of intimidation against three alternative victims—Victim A, Victim B, “and/or” Victim C—who were allegedly threatened at distinct periods of time on the night in question), or where the State presents evidence of a greater number of separate criminal offenses than that with which the defendant is charged, see Castillo, 734 N.E.2d at 304 (where the State charged defendant with one count of dealing in cocaine but presented evidence of two separate acts of dealing at different times and places, trial court should have instructed jury it had to agree on which dealing crime defendant committed). In such cases, the jury could unanimously agree the defendant was guilty but rely on different acts in evidence to do so. To remedy a potential unanimity problem, our Supreme Court has directed:

[T]he State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge. However if the State decides not to so designate, then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.

Baker, 948 N.E.2d at 1177.

[31] Despite Parker's attempt to analogize his case to Castillo, the facts here do not fit neatly into the pattern of either Lainhart or Castillo. Parker was not charged with a single count of committing a crime against alternative victims, and the State did not present evidence of separate criminal acts at different times and places. A Baker-style instruction would not be useful where Parker was charged with committing one act on one day and time in one location causing property damage collectively to two victims.⁶ The jury instructions as given were consistent with the charge. Cf. Townsend, 632 N.E.2d at 729–31 (finding fundamental error where defendant was charged in a single count with committing battery on Victim 1 and Victim 2 but the trial court “inexplicably” provided “diametrically opposed” verdict forms “invit[ing] the jury to convict [defendant] based upon proof of commission of a battery upon either child, rather than upon commission of a battery upon both children, as the charge alleged”). The trial court informed the jury its verdict had to be unanimous. As the post-conviction court found, there is no reason to believe the jury “was in any way confused about [its] obligation to unanimously agree that the pecuniary loss to Rene Torres and Alex Vasquez amounted to at least [$5,000] before [it] could find [Parker] guilty in Count [1].” Appellant's PCR App. Vol. 2 at 136. Parker has not shown that a fair trial was impossible without a specific unanimity instruction to the jury and therefore, he has not shown the trial court committed fundamental error by failing to step in and give such an instruction sua sponte.

[32] Because Parker has failed to prove fundamental error, he has failed to demonstrate any prejudice resulting from appellate counsel's alleged deficient performance in failing to raise this issue. See Benefield, 945 N.E.2d at 803 (“[I]f an unpreserved error is found not to be fundamental, then appellate counsel cannot be ineffective for failing to raise it.”). And absent a showing of prejudice, Parker cannot prove he received ineffective assistance from his appellate counsel. The evidence as a whole does not unmistakably and unerringly point to a conclusion opposite that reached by the post-conviction court in this case.

Conclusion

[33] Parker has not demonstrated “there is no way within the law that the court below could have reached the decision it did.” Bradbury, 180 N.E.3d at 252. Accordingly, we affirm.

[34] Affirmed.

FOOTNOTES

1.   The charges were: Count 1 – Arson, Level 4 felony (as to Rene); Count 2 – Stalking, Level 5 felony (as to Melisa); Count 3 – Stalking, Level 6 felony (as to Melisa); Count 4 – Stalking, Level 6 felony (as to Patricia); Count 5 – Arson, Level 6 felony (as to Rene); Count 6, Arson, Level 6 felony (as to Alex); Count 7 – Invasion of Privacy, Class A misdemeanor; and Count 8, Criminal Mischief, Class B misdemeanor. See Trial App. Vol. 2 at 64–65.

2.   The amendment also eliminated the Level 6 felony stalking count as to Melisa. See Trial App. Vol. 3 at 95.

3.   The jury was instructed that to prove Parker committed arson, the State had to prove each of the following elements beyond a reasonable doubt:1. The defendant2. by means of fire, explosive or destructive device,3. did knowingly or intentionally4. damage property of Rene Torres and Alex Vasquez without their consent,5. and which resulted in pecuniary loss to Rene Torres and Alex Vasquez in an amount of at least five thousand dollars.PCR Ex. Vol. 1 at 26.

4.   Parker asked if Mulholland was “aware of the Mathews case [or] the Castillo case[.]” Id. at 11 (referring to Mathews v. State, 849 N.E.2d 578 (Ind. 2006) and Castillo v. State, 734 N.E.2d 299 (Ind. Ct. App. 2000), summarily aff'd, 741 N.E.2d 1196 (Ind. 2001)).

5.   Mathews is procedurally and factually distinguishable, so we assume this without deciding it. The defendant in Mathews was convicted of and sentenced for multiple arson counts based on the setting of a single fire that damaged one person's property and injured several people to varying degrees. Id. at 580–81. The question there was one of double jeopardy, and the Supreme Court's discussion about arson damaging property of multiple owners was dicta, as that was not a fact scenario presented by the defendant's convictions. Accord Appellant's Br. at 22 (stating the Supreme Court in Mathews “hypothesized that a person who sets one fire in a mall which spreads and destroys five other businesses in the mall commits five arsons”) (quotation omitted) (emphasis added).

6.   Parker argues the State's invitation during closing argument for the jury to “either combine the evidence of both owner's losses to reach the requisite minimum or rest on evidence of a single owner's loss” contributed to the fundamental error here. Appellant's Br. at 6. But given the charge—the validity of which is not at issue—the State's argument to the jury that Rene and Alex (if not Rene alone) suffered at least $5,000 in property damage was not problematic. See Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996) (holding there was no error when State presented the jury with alternative ways to find the defendant guilty as to one element). To the extent Parker argues the State further compounded the error by arguing the jury could also include the damage to the neighbor's fence and trash cans in the calculation, there was evidence that Alex paid for the replacement trash cans and wood to repair the fence. Further, the jury was instructed that the arguments of counsel are not evidence and that the instructions are the “best source as to the law applicable to this case.” Trial App. Vol. 5 at 142, 144.

Kenworthy, Judge.

Foley, J., and Scheele, J., concur.