Darvon Lawan Smith, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] In this post-conviction appeal, Darvon Smith argues the post-conviction court erred in denying his claims of ineffective assistance of trial and appellate counsel. Finding otherwise, we affirm.

Facts and Procedural History

[2] The relevant facts of Smith's offenses were articulated in this Court's memorandum decision affirming his convictions and sentence on direct appeal:

In August and September of 2017, Smith lived in apartment 410 at the East Central Towers in Fort Wayne. William Hackett lived down the hallway in apartment 415, but he had been absent from the apartment for some time. Other people had forced the door to apartment 415 open, breaking the locking mechanism in the process, and they used the apartment for various purposes.

On August 19, Smith responded to an online advertisement for “escort” services from T.J. T.J. met Smith at the East Central Towers and they entered apartment 415. There, Smith “snatched” T.J.’s phone, told her she was “not going back outside,” “pulled out a knife,” and told her he was going to “slice [her] neck from the left to the right.” T.J. thought the knife “looked like a steak knife.” Smith “told [T.J.] to give him oral sex,” and she complied. Smith then gave T.J. the knife and told her to “throw it across the room,” which she did, “but [T.J.] was still scared out of her mind.” Smith then “put his penis in [T.J.’s] vagina.” At some point thereafter, T.J. gouged Smith in the eyes and escaped the apartment by moving a television that he had placed to block the door. She ran naked down the hallway “screaming for help” and saying, “he's trying to rape me, he's trying to kill me.” She escaped into apartment 410, but Smith also went to apartment 410 and found her there. T.J. then jumped out of the window to escape him. She later woke up at Lutheran Hospital with multiple broken bones, a concussion, and a lacerated liver.

On September 2, Smith responded to another online advertisement for “escort” services, this time from L.R. L.R. met Smith at the East Central Towers and accompanied him into apartment 415. There, Smith blocked the front door with a television and “pulled a knife” on L.R., and she felt she did “not ․ ha[ve] a choice” in how to proceed from there. L.R. thought the knife “was like ․ a serrated steak knife.” Smith then had L.R. perform oral sex on him, after which he compelled her to engage with him in sexual intercourse. L.R. was “scared” and “d[id not] want to,” but she complied. Afterwards, Smith told L.R. that “if [she] were ever going to call the police that he would kill [her].” Not long after her encounter with Smith, L.R. moved to California.

On September 18, Smith once again responded to an online advertisement for “escort” services, this time from A.Y. A.Y. met Smith at the East Central Towers and accompanied him into apartment 415. As soon as they were in the apartment, Smith put “a knife ․ in [A.Y.’s] face.” A.Y. “started crying and ․ shaking,” and she told Smith to “just put the knife down ․ You'll get what you want, ․ just put the knife down.” Smith then compelled A.Y. to engage with him in sexual intercourse, which A.Y. “didn't want.” Afterwards, Smith refused to let A.Y. leave the apartment until the next morning, when he again compelled her to engage with him in sexual intercourse.

On October 6, the State charged Smith with five counts of rape, each as a Level 1 felony; three counts of criminal confinement, each as a Level 3 felony; and with being a habitual offender․

․

Following the presentation of evidence and closing arguments, the court instructed the jury. In particular, the court gave the following instruction with respect to the evidence of Smith's use of a knife: “It is not required that the deadly weapon be held on the victim at all times. The initial showing of deadly force and the victim's awareness of the defendant's continued constructive possession of the weapon may be sufficient to satisfy the ‘armed with a deadly weapon’ element.” Smith objected to that instruction on the grounds that “the concept is adequately covered by the Court's pattern instructions ․ and it gives undue emphasis and support to the State's argument to give that as an instruction.” The court overruled Smith's objection and instructed the jury accordingly.

The jury found Smith guilty as charged, including on the habitual offender allegation, and the court entered judgment of conviction against Smith on each count. The court then held a sentencing hearing ․ [and] ordered Smith to serve the advisory sentence for each conviction. However, the court ordered the sentence for each rape conviction to be served consecutive to the others. The court further ordered Smith's sentence for his criminal confinement conviction with respect to T.J. to be served consecutive to his other sentences “because of the extraordinary injuries she suffered in order to escape that confinement.” The court ordered the other two sentences on the criminal confinement convictions to be served concurrent with Smith's sentences for his rape convictions, and the court enhanced Smith's sentence for his rape of T.J. by twenty years based on Smith being a habitual offender. Thus, the court ordered Smith to serve an aggregate term of 179 years in the Department of Correction.

Smith v. State, No. 18A-CR-505, at *1-2 (Ind. Ct. App. Oct. 29, 2018) (mem.) (alterations in original) (record citations omitted), trans. denied.

[3] In October 2023, and as later amended, Smith petitioned for post-conviction relief, alleging that his trial attorney, John Bohdan, and appellate attorney, Gregory Fumarolo, had failed to provide effective assistance of counsel in numerous respects. Smith elected to proceed pro se, and the parties were ordered to submit their respective cases by affidavit. In December 2024, Smith filed an affidavit and a “Catalog of Exhibits” which included records from the underlying proceedings as well as answers to interrogatories submitted by Bohdan and Fumarolo. Appendix Vol. 4 at 62.¹ The State filed its response in January 2025, and Smith filed a reply the next month. In March 2025, the post-conviction court entered findings of fact and conclusions of law denying Smith's petition for post-conviction relief. See Ind. Post-Conviction Rule 1(6) (“The court shall make specific findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held.”). Smith now appeals.²

Discussion and Decision

1. Standard of Review

[4] Smith appeals from the denial of post-conviction relief, which constitutes an appeal from a negative judgment. Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). To prevail, he “must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Id. In other words, we will “not reverse a denial of post-conviction relief unless ‘there is no way within the law that the court below could have reached the decision it did.’ ” Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh'g denied, cert. denied), as modified on reh'g, cert. denied. Although we do not defer to its legal conclusions, we will affirm the post-conviction court's factual findings unless they are clearly erroneous. Humphrey, 73 NE.3d at 682.³

[5] Preliminarily, we note that Smith proceeds in this appeal pro se. We do not afford him “special consideration by virtue of his pro se status.” Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). Rather, we will hold him “to the same legal standards as licensed attorneys[,]” meaning he must follow established rules of procedure and accept the consequences of his failure to do so. Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016), reh'g denied.

2. Ineffective Assistance of Counsel

[6] Smith argues he was denied effective assistance of trial and appellate counsel in violation of the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution. See Hanks v. State, 71 N.E.3d 1178, 1183 (Ind. Ct. App. 2017) (noting “[o]ur state constitution protects the same right” as the federal constitution in this respect), trans. denied. To succeed on these claims, Smith had to show by a preponderance of the evidence that: “(1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) the deficiency was so prejudicial as to create a reasonable probability the outcome would have been different absent counsel's errors.” Bradbury, 180 N.E.3d at 252 (applying the test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), reh'g denied); see also P-C.R. 1(5) (burden of proof).

[7] When assessing counsel's performance, we presume he “exercised ‘reasonable professional judgment’ and rendered adequate legal assistance” throughout the proceedings. Wilson v. State, 157 N.E.3d 1163, 1177 (Ind. 2020) (quoting Stevens, 770 N.E.2d at 746), reh'g denied. “Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review.” Bradbury, 180 N.E.3d at 252. Consequently, “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Wilson, 157 N.E.3d at 1177 (quoting Stevens, 770 N.E.2d at 747) (alteration in original). The Sixth Amendment entitles defendants to reasonably competent representation, “not perfect advocacy judged with the benefit of hindsight.” Bradbury, 180 N.E.3d at 252 (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).

[8] In the event counsel's performance fell short of prevailing standards, the defendant must show the “deficient performance actually prejudiced [his] defense.” Wilkes v. State, 984 N.E.2d 1236, 1241 (Ind. 2013). Said differently, he must demonstrate “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694). “A reasonable probability is one that is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010), reh'g denied.

A. Trial Counsel

[9] Smith argues Bohdan rendered ineffective assistance of counsel by failing to (1) object or move to dismiss certain proposed amendments to the charging information on grounds of prosecutorial vindictiveness and (2) effectively object to a jury instruction. We address each of these arguments in turn.

[10] In October 2017, Smith was originally charged with five counts of Level 1 felony rape (Counts 1-5). Each count alleged that he knowingly or intentionally had sexual intercourse or engaged in other sexual conduct with T.J., L.R., and A.Y. (the Women), and that he “compelled [them to do so] by the use or threatened use of deadly force ․” E.g., DA App. Vol. 2 at 23; see Ind. Code § 35-42-4-1(a)(1), (b)(1) (2017) (elevating forcible rape to Level 1 felony if “committed by using or threatening the use of deadly force”). On December 15, the State sought to amend Counts 1-5 to reflect that the Women's sexual conduct “was compelled by the use or threatened use of deadly force by ․ Smith or while ․ Smith was armed with a deadly weapon[.]” DA App. Vol. 2 at 77, 84-88 (emphasis added); see I.C. § 35-42-4-1(a)(1), (b)(2) (2017) (elevating forcible rape to Level 1 felony if “committed while armed with a deadly weapon”).

[11] At a pretrial conference on December 28, the following exchange amongst the trial court and counsel occurred:

THE STATE: The second outstanding motion is a motion to amend the charging information for counts one through five, it was filed on December 15th. Initially, we charged the level one felonies ․ under the theory that the victims were compelled by use or threatened use of deadly force by [Smith]. After meeting with the witnesses and kind of going back through the discovery, we are requesting to add an alternate theory of the Defendant's guilt, that [he committed rape] while armed with a deadly weapon. The existence of the deadly weapon in the case was contained in the initial discovery, but it was developed a little bit more after we met with the witnesses, so this is an amendment to conform to anticipated evidence at trial.

THE COURT: Okay.

MR. BOHDAN: I have no objections to the proposed amendment. I think it's kind of over-kill. It's been understood that it was alleged that a knife was involved in these allegations. All these individuals have been deposed in varying degrees and they've indicated that there was a knife present, so that's not surprising.

THE COURT: Okay. Well, and I note count[s] six through eight are confinement while armed with a deadly weapon, so –

[THE STATE]: Correct.

DA Pre-Trial Transcript at 17.

[12] Smith claims this amendment amounted to prosecutorial vindictiveness because the State was aware of the alternative theory when it filed charges but moved to amend the information two months later without any “new evidence to support the amended filings ․” Appellant's Br. at 21. He speculates that the State was retaliating against him for moving for a speedy trial. But the State's pretrial amendment to the rape charges was “presumptively valid,” and that presumption can only be overcome by evidence of actual vindictiveness. Johnson v. State, 959 N.E.2d 334, 342 (Ind. Ct. App. 2011) (quoting Penley v. State, 506 N.E.2d 806, 811 (Ind. 1987)), reh'g denied, trans. denied. To prove actual vindictiveness, Smith had to show “the prosecutor's charging decision was motivated by a desire to punish [him] for doing something that the law plainly allowed him to do.” Id. (quoting State v. Selva, 444 N.E.2d 329, 331 (Ind. Ct. App. 1983)). Smith cannot show anything of the sort.

[13] The State is permitted to amend the information “at various stages of a prosecution, depending on whether the amendment is to the form or to the substance of the original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quoting Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)), reh'g denied.

[A]n amendment is one of form and not substance if a defense under the original information would be equally available after the amendment and the accused's evidence would apply equally to the information in either form. Further, an amendment is of substance only if it is essential to making a valid charge of the crime.

Id. at 406 (quoting Fajardo, 859 N.E.2d at 1205). Whether to form or substance, the State may not amend the information in a way that “prejudice[s] the substantial rights of the defendant.” I.C. § 35-34-1-5(b), (c) (2017).⁴ “A defendant's substantial rights ‘include a right to sufficient notice and an opportunity to be heard regarding the charge; and, if the amendment does not affect any particular defense or change the positions of either of the parties, it does not violate these rights.’ ” Erkins, 13 N.E.3d at 405 (quoting Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied).

[14] Given that Bohdan acknowledged the alternative charging language was not a surprise and Smith's defense at trial—that he had engaged in consensual sexual conduct with the Women and did not display a knife or threaten deadly force—was not impacted by the amendment, it neither prejudiced his substantial rights nor reflected a hint of vindictiveness. See DA Jury Trial Tr. Vol. 3 at 185-87, 202-03, 212-13 (Smith testifying about the encounters); id. at 193-94, 203-04, 214, 220 (Smith testifying about knife and threats); DA Jury Trial Vol. 4 at 9-30 (Smith's closing argument focusing on the Women's credibility and the “reasons [they] ha[d] to falsely accuse [Smith]”); see also Appellant's Br. at 30 (noting “[h]is only defense was that he did not force these women into action” because they had “mutual agreements for a [sexual] encounter” which were “in some cases ․ fulfilled to the scorn of the complaining witnesses”). Thus, Bohdan was not ineffective by failing to object on grounds of prosecutorial vindictiveness or otherwise. See Curtis v. State, 905 N.E.2d 410, 418 (Ind. Ct. App. 2009) (“Counsel is not rendered inadequate for failing to make a futile objection.”), trans. denied.

[15] Next, Smith argues Bohdan was ineffective in his objection to a jury instruction detailing the alternative “armed with a deadly weapon” element in the rape charges. To succeed on this claim, Smith “must first prove that a proper objection would have been sustained.” Gillespie v. State, 244 N.E.3d 423, 437 (Ind. Ct. App. 2024) (quoting Lambert v. State, 743 N.E.2d 719, 741 (Ind. 2001), reh'g denied, cert. denied).

[16] On the final day of trial, the State proposed the following instruction:

It is not required that the deadly weapon be held on the victim at all times. The initial showing of deadly force and the victim's awareness of the defendant's continued constructive possession of the weapon may be sufficient to satisfy the “armed with a deadly weapon” element.

DA App. Vol. 2 at 110; DA Jury Trial Tr. Vol. 3 at 111-13. Bohdan objected, arguing “the concept [was] adequately covered by the Court's pattern instructions ․ and it gives undue emphasis and support to the State's argument ․” DA Jury Trial Tr. Vol. 3 at 114. The trial court overruled the objection and later instructed the jury in line with the amended rape charges and the proposed instruction on the “armed with a deadly weapon” element. See DA App. Vol. 2 at 146-150, 163. On direct appeal, Smith challenged the instruction, arguing it was “ ‘misleading’ and ‘incomplete.’ ” Smith, No. 18ACR-505, at *3 (quoting appellant's brief). However, the panel found he had waived the issue by asserting “one ground at trial but ․ a different ground for error on appeal.” Id.

[17] In his petition for post-conviction relief, Smith alleged Bohdan was ineffective for failing to object to the instruction on various grounds, including that the instruction improperly: (1) contained multiple legal principles; (2) used the legal term “constructive possession” without defining it; (3) referred to the complaining witness as “the victim;” and (4) shifted the burden of proof unto him. See App. Vol. 4 at 20-21. The post-conviction court disagreed, and for the reasons below, we conclude the record does not convince us otherwise.

[18] Smith contends the “armed with a deadly weapon” instruction violated Indiana Trial Rule 51(D), which provides that a party may not propose a jury instruction that touches on more than “one ․ relevant legal principle.” But at the time of Smith's trial, Rule 51(D) did not apply to criminal trials, as it does now through Criminal Rule 3.2. Nevertheless, like the trial rule, Criminal Rule 8(A) (effective until December 31, 2023) provided that “[e]ach tendered instruction shall be confined to one ․ relevant legal principle.” Smith claims the two sentences in the instruction relay distinct legal principles, but he is mistaken. The instruction laid out but one legal principle: the circumstances under which the jury could find he had committed the rapes while armed with a deadly weapon. See Adams v. State, 539 N.E.2d 985, 989 (Ind. Ct. App. 1989) (finding a lengthy operating while intoxicated instruction reflected a single legal principle despite enumerating several factors the jury had to find before considering evidence of the defendant's chemical test results).

[19] Smith further argues that Bohdan “could have objected to this instruction on grounds that it did not define ‘constructive possession’ completely in the context of the case law that supports the instruction[.]” Appellant's Br. at 25-26. According to Smith, the instruction was rooted in reasoning found in a sufficiency-of-the-evidence case, Potter v. State, 684 N.E.2d 1127, 1137 (Ind. 1997), and “may have improperly emphasized the weight to be given to evidentiary facts ․” Appellant's Br. at 26; see Batchelor v. State, 119 N.E.3d 550, 563 (Ind. 2019) (cautioning that language from an appellate opinion is not always proper for use in a jury instruction, “especially ․ when ․ the instruction is rooted in reasoning found in a sufficiency-of-the-evidence case”). That said, Smith did not make this argument to the post-conviction court. There, he argued Bohdan should have requested an instruction defining “constructive possession” because the term has a “legal or technical meaning” and without a definition, the term “may have confused” the jurors. App. Vol. 4 at 21; see Clemons v. State, 83 N.E.3d 104, 108 (Ind. Ct. App. 2017) (noting the trial court must define words lay jurors would not normally understand due to their technical or legal meaning), trans. denied. Because Smith raises a demonstrably different theory on appeal than he did before the post-conviction court, he has waived this issue for our review. See Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”), trans. denied. In any case, even if Smith had not waived this issue and could show such an objection had merit, he has not proven that Bohdan's failure to object on this basis “was unreasonable and resulted in sufficient prejudice such that there exists a reasonable probability the outcome [of his trial] would have been different.” Potter, 684 N.E.2d at 1132. In light of the evidence and his defense at trial, we cannot see how the absence of this instruction or the inclusion of an instruction defining “constructive possession” would have produced a reasonable likelihood of a different verdict.

[20] Next, Smith claims the instruction undermined his “right to fundamental fairness and due process as it improperly referred to each accusing witness as ‘the victim’ ․” Appellant's Br. at 26. He argues the use of the word “victim” signaled to the jury that the trial judge believed his accusers’ testimonies. Yet in Borroel v. State, this Court noted that “our Supreme Court has not held that it is erroneous for the trial court to refer to the complaining witness as a ‘victim’ ” when reading the charging information and providing instructions on the elements the State is required to prove. 241 N.E.3d 8, 15 (Ind. Ct. App. 2024), trans. denied. And in any case, the instruction at issue purported to describe a situation where the armed with a deadly weapon element also satisfied the requirement that the offense be forcible.⁵ See Potter, 684 N.E.2d at 1137 (finding sufficient evidence to establish a Class A felony rape while armed with a deadly weapon where the defendant threatened the victim with a knife but set it nearby while he committed the offense). The use of the word “victim” was appropriate then because if the jury found such circumstances applied, a completed offense had occurred and “there actually were ․ victims.” Appellee's Br. at 23. Thus, Smith has not shown an objection to using the word “victim” would have been sustained. See Borroel, 241 N.E.3d at 15 (finding the trial court's use of “victim” did not “intimate[ ] any assessment of [the complaining witness’] credibility or any opinion on how the jury should decide the case”).

[21] Finally, Smith argues Bohdan could have claimed “that the [d]eadly [w]eapon element had a conclusive or burden-shifting effect on the material element of force in violation of the Fourteenth Amendment to the United States Constitution.” Appellant's Br. at 27. Indeed, an instruction cannot relieve the State of its burden to prove every element of a criminal offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979). But we need not engage in a constitutional analysis if the instruction does not, in fact, prescribe any form of presumption. See Francis v. Franklin, 471 U.S. 307, 313-15 (1985) (stating the threshold inquiry is determining the nature of the presumption described in the instruction and articulating standards for reviewing mandatory presumptions and permissive inferences). While Smith fails to cogently explain how the challenged instruction created a presumption in the first instance, we agree with the State that the instruction “did not state or imply that the jurors must find that there was a deadly weapon or an initial showing of deadly force, nor did the instruction state or imply what jurors were required to do if they made such findings.” Appellee's Br. at 24. Thus, Smith failed to prove a “burden shifting” objection would have succeeded.

[22] In short, Smith has failed to demonstrate that Bohdan's performance was deficient, and the post-conviction court did not err in concluding he was not denied effective assistance of trial counsel.

B. Appellate Counsel

[23] On direct appeal, the panel found Smith had waived his argument relating to the armed with a deadly weapon instruction because he raised different grounds on appeal than at trial. See Smith, No. 18A-CR-505, at *3. It also found sufficient evidence supported Smith's convictions. See id. at *4. In his post-conviction petition and now in this appeal, Smith argues that his appellate counsel, Fumarolo, “inadequate[ly] present[ed]” arguments related to the sufficiency of the evidence and the armed with a deadly weapon instruction.⁶ Appellant's Br. at 32.

[24] Claims that appellate counsel was ineffective are reviewed under the same standard as those involving trial counsel. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). Such claims generally fall into three buckets: “(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Id. at 270. In this case, Smith concedes his arguments “are based upon the category of failure to present issues well[.]” Appellant's Br. at 32. Claims of this nature “are the most difficult for convicts to advance and reviewing tribunals to support.” Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997), reh'g denied, cert. denied. As our Supreme Court explained in Bieghler, this is true for two reasons:

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. While impressive appellate advocacy can influence the decisions appellate judges make and does make our task easier, a less than top notch performance does not necessarily prevent us from appreciating the full measure of an appellant's claim, or amount to a breakdown in the adversarial process that our system counts on to produce just results ․

Id. at 195-96 (internal citations, quotations, and footnote omitted).

[25] We address the jury instruction first. Smith acknowledges that Bohdan's objection to the armed with a deadly weapon instruction did not preserve much, if anything, for appeal, but he argues that Fumarolo should have challenged the instruction on grounds of fundamental error. He focuses specifically on his belief that the instruction created an improper burden-shifting presumption. That said, since we've found Bohdan was not ineffective for failing to raise this meritless argument at trial, Fumarolo cannot be found ineffective for failing to do so on appeal. Taylor v. State, 882 N.E.2d 777, 782-83 (Ind. Ct. App. 2008) (finding appellate counsel was not ineffective for failing to raise fundamental error related to an issue trial counsel was not ineffective for failing to raise).

[26] Claiming the evidence was insufficient to support his convictions,⁷ Smith argues Fumarolo was ineffective by failing to raise the incredible dubiosity rule. Smith acknowledges that sufficiency claims are generally subject to a deferential standard of review. Typically, the appellate court neither reweighs the evidence nor judges the credibility of witnesses, and it will affirm the conviction unless no reasonable jury could've found the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). And in rape cases, a conviction “may rest solely on the uncorroborated testimony of the victim[.]” Carter v. State, 44 N.E.3d 47, 54 (Ind. Ct. App. 2015). However, in exceptional cases, we may set aside a conviction under the incredible dubiosity rule. This rule allows an appellate court to “impinge upon the jury's duty to judge witness credibility” where a sole testifying witness provided “testimony that [was] inherently contradictory, equivocal, or the result of coercion” and there was “a complete absence of circumstantial evidence.” Moore v. State, 27 N.E.3d 749, 755, 756 (Ind. 2015). While this test is not impossible to satisfy, it is nonetheless difficult and “requires great ambiguity and inconsistency in the evidence.” Id. at 756 (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).

[27] Here, the testimony of the Women upon which Smith relies does not contain nearly the level of contradiction, equivocation, or vacillation necessary to succeed on an incredible dubiosity challenge. See Appellant's Br. at 40-48.⁸ Smith also points to the fact that the Women were engaged in illegal prostitution, see I.C. § 35-45-4-2 (2017) (criminalizing prostitution), claiming that fact is “antithetical to the elements needed for the State to prove rape.” Appellant's Br. at 44. But a person involved in prostitution can be the victim of rape, and in fact, this Court has “note[d] that women who engage in prostitution are more likely to be raped than non-prostituted women.” Carter, 44 N.E.3d at 55. In any event, Smith's attempt to cast the Women as specious characters “involved in the underworld practice of whoredom[,]” Appellant's Br. at 47, overlooks the fact that their willingness to testify despite their involvement in illegal activity could've given the jury more reason to believe them. See DA Jury Trial Tr. Vol. 3 at 27 (A.Y. testifying she was afraid to report Smith's crimes to law enforcement because they implicated her drug use and prostitution). Thus, Fumarolo was not ineffective for forgoing an incredible dubiosity challenge.

[28] For these reasons, the post-conviction court did not err in concluding that Smith was not denied effective assistance of appellate counsel.

3. Evidentiary Hearing

[29] Finally, Smith argues the post-conviction court erred in declining his request for an evidentiary hearing. On October 12, 2023, the post-conviction court ordered Smith to submit his case by affidavit. See P-C.R. 1(9)(b). On the 16th, Smith requested an evidentiary hearing and asked that Bohdan and Fumarolo be subpoenaed to testify at the hearing. In an affidavit, Smith stated that he expected Bohdan to testify as follows: “That he was present as representation for [Smith] through pretrial proceedings and trial. That he has knowledge of the proceedings and his strategies employed during said proceedings. That he c[ould] further illuminate the Court as to his reasoning behind the use of said strategies.” App. Vol. 2 at 133. Smith made nearly identical allegations regarding Fumarolo's anticipated testimony. See id. at 137. The next month, the court summarily denied Smith's requests for subpoenas and stated that after the case was submitted by affidavit, it would “either make a ruling based on the affidavit/pleading of the parties or schedule a hearing on the [p]etition.” Id. at 149. After filing his materials, Smith again requested an evidentiary hearing in March 2025. A few days later, the court denied Smith's petition for post-conviction relief, noting it could resolve the matter without hearing. See App. Vol. 5 at 22.

[30] Under the Post-Conviction Rules,

In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing. If the pro se petitioner requests issuance of subpoenas for witnesses at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the witness’ testimony is required and the substance of the witness’ expected testimony. If the court finds the witness’ testimony would be relevant and probative, the court shall order that the subpoena be issued. If the court finds the proposed witness’ testimony is not relevant and probative, it shall enter a finding on the record and refuse to issue the subpoena.

P-C.R. 1(9)(b) (emphasis added). The purpose of this rule “is to allow for more flexibility in both the presentation of evidence and the review of post-conviction claims where the petitioner proceeds pro se.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied. Whether to hold an evidentiary hearing in addition to considering the submitted materials is a matter within the sound discretion of the court. Id.

[31] Smith does not dispute the post-conviction court's decision to order the case submitted by affidavit. Instead, he argues an evidentiary hearing was required for a full and fair determination of the issues “because he raised claims that could support relief” and “subpoenaed witnesses and presented an affidavit ․” Appellant's Br. at 53. But even if Smith made a showing that produced some level of dispute, that did not require the post-conviction court to hold a hearing. This Court's decision in Smith makes clear that “factual statements in affidavits often raise issues of fact, and to require a full evidentiary hearing any time affidavits submitted under Rule 1(9)(b) create issues of fact would defeat the purpose of” the rule. 822 N.E.2d at 201 (noting affidavits are sworn testimony and qualify as evidence in post-conviction proceedings). While the court must hold an evidentiary hearing when a petitioner raises a genuine issue of material fact in summary disposition proceedings, see P-C.R. 1(4)(g), the same is not required when a case is submitted upon affidavit under Rule 1(9)(b). Smith, 822 N.E.2d at 201.

[32] In his principal brief, Smith mentions in passing that he tried to subpoena Bohdan and Fumarolo to testify at an evidentiary hearing, but he made no attempt to explain how his attempt to do so ties into his claim that the post-conviction court erred in denying him an evidentiary hearing. We therefore find he failed to make a cogent argument to that effect. See Ind. Appellate Rule 46(A)(8)(a). Although Smith expands on this topic in his reply brief, an issue cannot be raised for the first time in a reply brief. French v. State, 778 N.E.2d 816, 825-26 (Ind. 2002). Thus, Smith waived this issue for review.

[33] Waiver notwithstanding, Smith has not shown he is entitled to remand for an evidentiary hearing based on his requests for subpoenas. A petitioner's requests for subpoenas can help the trial court determine whether an evidentiary hearing is required for a full and fair determination of the issues in a case otherwise set to be decided by affidavit. See Smith, 822 N.E.2d at 201-02. And here, although Smith contends the post-conviction court was required to enter findings about the relevance and probative value of the attorneys’ testimony, Smith's general allegations about the nature of the expected testimony were not sufficient to adequately apprise the court of its substance or why it was required. See Fuquay v. State, 689 N.E.2d 484, 486 (Ind. Ct. App. 1997) (finding the petitioner's subpoena request did not “specifically state[ ] what he expected his trial counsel to reveal at a hearing as required by the post-conviction rules”), trans. denied. Nor does Smith explain why the court's failure to enter an adequate finding warrants reversal. Indeed, a post-conviction court's failure to enter specific findings when denying a pro se petitioner's request for a subpoena is not reversible error if “the issues are sufficiently presented for review and addressed by the parties.” Rondeau v. State, 48 N.E.3d 907, 915 (Ind. Ct. App. 2016) (quoting Pannell v. State, 36 N.E.3d 477, 487 (Ind. Ct. App. 2015), trans. denied), trans. denied. Because the post-conviction court allowed Smith to secure interrogatories from Bohdan and Fumarolo and Smith did not adequately explain why further testimony from them was required for a full and fair determination of the issues, the court did not abuse its discretion in denying his request for an evidentiary hearing.

Conclusion

[34] For the foregoing reasons, we affirm the post-conviction court's judgment.

[35] Affirmed.

FOOTNOTES

1.   This opinion cites records from Smith's direct appeal as well as those submitted on appeal in these post-conviction proceedings. We use “DA” to signify citations to the record on direct appeal. Additionally, our citations to appendices do not reference the filing party because appellant filed all appendices in both appeals. We also note at this point that Smith submitted amended appendices and an amended brief in this appeal, and we omit further references to these filings being amended.

2.   We provide additional facts in the discussion where relevant.

3.   The post-conviction court effectively adopted the State's proposed findings and conclusions verbatim. Compare App. Vol. 5 at 2-22 with App. Vol. 2 at 18-33. While we do not encourage such practice, it is not prohibited. Pruitt v. State, 903 N.E.2d 899, 939-40 (Ind. 2009), reh'g denied. Thus, we will not reverse the court's decision on that basis, and “[t]he critical inquiry [remains] whether the findings adopted by the court are clearly erroneous.” Hobbs v. State, 206 N.E.3d 419, 425 (Ind. Ct. App. 2023) (quoting Pruitt, 903 N.E.2d at 940) (first alteration in original), trans. denied.

4.   The State does not argue it could amend the information at will, but we note that under Indiana Code section 35-34-1-5(a)(5), “the use of alternative or disjunctive allegations as to the acts, means, intents, or results charged” is considered an “immaterial defect” subject to amendment “at any time ․” And generally, the State is “permitted to ‘present[ ] the jury with alternative ways to find the defendant guilty as to one element.’ ” Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011) (quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996), reh'g denied) (alteration in original), reh'g denied.

5.   Because Smith does not argue that Bohdan should have objected to the instruction on grounds that it blended the forcible element with the armed with a deadly weapon element or otherwise improperly defined armed with a deadly weapon, we will not investigate these matters for him.

6.   In his standard of review section, Smith purports to raise a third bundle of issues about appellate counsel's performance—that Fumarolo “rendered ineffective assistance for not raising the issue that the trial court abused its discretion and committed fundamental error when it instructed the jury on direct and circumstantial evidence, deadly force, the term ‘threatens,’ and rape.” Appellant's Br. at 32. Having reviewed the remainder of his brief, we observe that Smith made no arguments on these issues. Thus, Smith has waived these issues for our review. See Ind. Appellate Rule 46(A)(8)(a) (requiring that the appellant's arguments be “supported by cogent reasoning”).

7.   To the extent Smith purports to challenge the sufficiency of the evidence supporting his convictions related to T.J. on other grounds, he merely asserts the same arguments that Fumarolo made on direct appeal. Compare Appellant's Br. at 37-41 with Appellant's DA Br. at 44-45; see also Appellee's Br. at 29 (noting Smith's argument “simply follows Attorney Fumarolo's unsuccessful effort ․”). When an appellate court “decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), reh'g denied, cert. denied. Thus, we will not entertain Smith's request. See Smith, No. 18A-CR-505, at *4 (finding T.J.’s testimony sufficient to show Smith committed the offenses against her).

8.   For example, he claims T.J. expressed “equivocation and uncertainty regarding vaginal penetration” because she testified that she thought they “had sex” before clarifying that Smith “put his penis in [her] vagina.” Appellant's Br. at 44; DA Jury Trial Tr. Vol. 2 at 46. T.J. also testified that Smith took her phone and told her she couldn't leave before pulling a knife on her and saying he would “slice [her] neck ․” DA Jury Trial Tr. Vol. 2 at 41. Smith says we should doubt this narrative because, when viewed as a whole, T.J.’s description of the encounter “was so convoluted and/or contrary to human experience that no reasonable person could believe it.” Appellant's Br. at 43. Specifically, T.J. testified that later while Smith forced her to give him oral sex, Smith said he wouldn't hurt her because she was “a woman of color,” handed her the knife, and told her to throw it across the room, which she did. DA Jury Trial Tr. Vol. 2 at 44. But to the extent such testimony is suspect at all, it is not testimony that no reasonable person could believe.

DeBoer, Judge.

Brown, J., and Altice, J., concur.