HORN v. STATE (2026)

MEMORANDUM DECISION

[1] While Dakota Horn was renovating Michial Pardue's house, an altercation occurred between the two. Each man presented a different story: Pardue said Horn hit him with a hammer, tied him up, and robbed him, while Horn claimed that Pardue made a physical sexual advance that led to a scuffle, after which Pardue told Horn to withdraw money from Pardue's bank account to pay Horn for his work.

[2] Horn and his wife, who had withdrawn the money from Pardue's bank account, were charged with numerous offenses and proceeded to a joint jury trial. But because Pardue could not remember anything after being struck with the hammer during the altercation, the State sought to admit recordings of Pardue's police interviews. Horn's trial counsel agreed to their admission so long as Pardue testified. The jury found Horn guilty on six counts, including robbery resulting in serious bodily injury, confinement, and conspiracy to commit fraud. He was sentenced to 31 years total.

[3] On direct appeal, Horn claimed Pardue's recorded statements to police lacked a foundation because Pardue did not recall making the statements. The Court of Appeals agreed the videos lacked foundation but found no fundamental error given the other evidence of Horn's guilt. Horn later filed a petition for post-conviction relief, alleging that his trial counsel was ineffective for failing to object to the admission of the recordings. That petition was denied.

[4] Horn now appeals that denial. We find no deficient performance by his trial counsel, as the failure to object was part of a reasonable trial strategy to attack Pardue's credibility by contrasting his recorded statements with other evidence. We affirm.

Facts

[5] In November 2017, Pardue browsed Craigslist for assistance with a home renovation project: tearing down and replacing two exterior walls of his walkout basement. Pardue found Horn's offering of construction services and reached out to Horn about the project. Pardue's Craigslist account and the email that he used to communicate with Horn bore the name Mike Brenner.

[6] Horn agreed to work for Pardue for $30 per hour, for an estimated 30 hours of work. Horn visited Pardue's home to assess the project and materials required, and Pardue bought numerous 2x4s and pieces of plywood for the project.

[7] On Friday, November 24, Horn began renovating Pardue's home. After working for 6 hours, Horn demanded $200 payment, even though that was more than the agreed-upon hourly rate. Pardue complied and paid him in cash. The next day, Horn worked at Pardue's house for another 6 hours, stopping to let the concrete he had poured dry. Horn again demanded payment of $200, and Pardue paid him that amount in cash.

[8] On Sunday, November 26, the third day of work, Horn arrived at Pardue's home around 8 a.m. He was dropped off by his wife, Nicole. Horn began chiseling concrete beside the doorway into the finished side of the walkout basement. Pardue watched Horn work but stood at a distance of roughly 20 feet away to avoid the concrete shavings. At one point, Pardue walked away from the home to tend to his horses. He returned and continued watching Horn work. Then, the altercation occurred.

[9] According to Pardue, he walked into the finished side of his basement to retrieve his coffee when Horn struck him in the head with a hammer. In his statements to police, Pardue reported that he fell to the floor after the hit and was bleeding from his head. Horn then tied Pardue's hands behind his back with a nearby electrical cord and took his phone and wallet. Horn demanded the PIN for Pardue's ATM card, threatening to hit him with the hammer again if he refused. Pardue complied.

[10] Horn then hollered out for Nicole, who had been waiting in her car at the front of Pardue's house. Nicole came to the walkout basement but remained outside it. Horn gave her Pardue's ATM card and the PIN, and he instructed her to withdraw $400. Nicole left, and Horn told Pardue that if the PIN did not work, he would hit him again with the hammer.

[11] While Horn stayed in the basement with Pardue, Nicole drove to a nearby ATM, but it did not work. She drove to a Family Express gas station and used its ATM to withdraw $200 from Pardue's account. She withdrew another $200 from the same ATM a few minutes later, around 9:30 a.m.

[12] When Nicole returned soon after, Horn untied Pardue and told him to walk 100 yards away from the house and sit down. Horn then packed up his tools, including the hammer, and drove away. Pardue waited roughly 30 seconds, then walked back to his house. He went to his kitchen to apply a cold compress to his head. He later walked to his neighbors’ homes in search of a phone to borrow. The first few neighbors did not answer the door, but a fourth neighbor answered and allowed Pardue to use her phone. Pardue walked some distance away from her and placed a few calls. He first called his own phone to see if Horn would answer; then, he called his bank to cancel his ATM card. Next, Pardue called 911, reporting to dispatch that he had been robbed and hit on the head but did not need medical care.

[13] Deputy Jordan Jones responded to Pardue's call within minutes, arriving around 11:40 a.m. Noticing the deep gash on Pardue's head, Deputy Jones called for a medic. Pardue then gave a statement as to what occurred and walked Deputy Jones around the walkout basement. There, Deputy Jones observed blood on the ground and on a stack of 2x4s, which was beside the table where Pardue had retrieved his coffee. This interaction was recorded on Deputy Jones's body-worn camera.

[14] Pardue was then transported to the hospital and received care for a skull fracture. At the hospital, police interviewed Pardue again. These conversations were also captured on an officer's body-worn camera. Pardue recounted that he had hired Horn through Craigslist and the first two days of work proceeded without incident. He stated that he was struck in the head with the hammer, that Horn demanded his ATM PIN, and that Horn's wife left to withdraw money. Pardue then commented: “He kept on saying, well, that he did it, he hit me with the hammer protecting himself because he thought I was looking at his butt.” State's Exh. 5 at 13:34-45.

[15] The following day, police conducted another interview with Pardue, captured in an audio recording. Pardue stated that, about an hour into Horn's work, Pardue went into the basement to get his coffee and was struck in the head with a hammer. When officers asked Pardue if there was a reason Horn had hit him, Pardue responded: “Not really, no. The only thing that he said was he hit me in the side of the head, uh, he hit me for his own protection because he felt threatened, he kept on saying he felt threatened.” State's Exh. 7 at 3:55-4:13.

[16] That same day, officers located Nicole, who provided a very different version of events than Pardue. In her recorded interview with police, Nicole stated that Pardue had approached Horn sexually, leading to an altercation. Horn called for Nicole, who had been waiting in her car before she had to go to work, and told her that Pardue was going to pay him for the job. Nicole said that she stood outside the basement and never saw Pardue, but she heard Pardue tell Horn to withdraw $400. Pardue gave Horn his PIN and the location of an ATM, but the card did not work at that ATM. Nicole then went to the Family Express and withdrew $400. She returned to the house and gave the card back to Horn, who she assumed gave the card back to Pardue.

[17] On November 29, police located Horn and conducted a recorded interview. Horn claimed that, while he was working, Pardue (whom he referred to as his Craigslist alias, Mike Brenner) made some sexual comments that Horn brushed off. For example, Horn recalled that Pardue “asked about if I offered any other service” and often stood close to Horn while he was working. State's Exh. 28 at 9:08-09. Horn then said the incident occurred when Pardue “grabbed” him from behind in a sexual “bearhug,” after which Horn stood up and attempted to push him off, causing the two to fall to the ground. Id. at 3:13, 4:00. According to Horn, Pardue then asked him not to call police, and Horn responded: “Pay me what you owe me, and I'll go my separate way.” Id. at 4:58-5:00. Pardue then gave Horn his phone, wallet, and PIN and told him to withdraw $400 today, then the rest of the $900 total he was owed the following day. Horn claimed that he had not been paid before then. When asked about Pardue's phone, Horn said he threw it in Pardue's yard. Officers told him it was found further away by railroad tracks. Only then did Horn say he threw it there.

[18] On November 30, police interviewed Pardue again at his home. The audio of this interview was also recorded. Officers presented Pardue with Horn's story—that Pardue had made a sexual pass at him and bearhugged him from behind, causing a fall to the ground—which Pardue denied. He stated that he only touched Horn when he gave him a handshake and that there was no provocation for the attack. He also denied giving Horn or Nicole permission to withdraw any money. Officers remarked that they did not observe any ligature marks on Pardue's wrists that day. They collected the electrical cord used to bind Pardue's hands to process as evidence.

[19] Horn was ultimately charged with 10 offenses based on this incident:

• Count 1: robbery resulting in serious bodily injury, a Level 2 felony;

• Count 2: conspiracy to commit robbery resulting in serious bodily injury, a Level 2 felony;

• Count 3: armed robbery, a Level 3 felony;

• Count 4: conspiracy to commit armed robbery, a Level 3 felony;

• Count 5: criminal confinement, a Level 3 felony;

• Count 6: conspiracy to commit criminal confinement, a Level 3 felony;

• Count 7: conspiracy to commit fraud, a Level 6 felony;

• Count 8: theft with a prior conviction, a Level 6 felony;

• Count 9: theft, a Class A misdemeanor; and

• Count 10: aggravated battery, a Level 3 felony.

[20] Nicole was charged jointly in Counts 1-6 and was individually charged with three other offenses relating to fraud and theft.

Pre-Trial and Trial Proceedings

[21] Horn and Nicole proceeded to a joint jury trial. Horn was represented by Michael Troemel, and Nicole was represented by Brian Dekker (collectively, Defense Counsel).

[22] At a pretrial hearing, the State sought to admit five recorded statements (“the recordings”) that Pardue made to police in the hours and days following the incident. These consisted of the bodycam footage of police's initial response to the 911 call; two segments of bodycam footage of the interview at the hospital that same day; and two audio recordings of Pardue's November 27 and 30 interviews with police. The State argued that the recordings were admissible under Indiana Evidence Rule 803(5)—an exception to the general rule against hearsay for recorded recollections—because Pardue no longer had any memory of the events that followed the blow to his head. Nicole's counsel had no objection so long as Pardue testified. Horn's counsel, Attorney Troemel, recognized that the recordings required an adequate foundation. Pardue then testified so the parties could assess whether he could lay that foundation.

[23] Pardue answered in the affirmative when asked if the contents of the recordings were true and accurate depictions of his interview, but he then testified that he had no actual memory of what happened in the recordings. He stated that he recalled the events leading up to and including the strike with the hammer but had no memory of anything that followed. He did not recall talking to police but agreed that he “remember[ed] telling people about it.” Tr. Vol. II, p. 48.

[24] At the end of Pardue's testimony, Attorney Troemel observed: “[H]e's close to making the foundation. It's arguable whether or not he did[,] but he's got to testify.” Id. at 50. When asked for his position on admission of the tapes, Attorney Troemel responded: “Can I have a second? ․ [Horn] doesn't have any objection to the playing of the tapes or the discs that you have in front of you as long as Mr. Pardue testifies․ That in no way is intended as a waiver of any kind of cross examination.” Id.

[25] At trial, Pardue testified to the events leading up to and including being hit with the hammer. These events included hiring Horn through Craigslist and their interactions on the first two days of work and the morning of the altercation. Pardue knew he was attacked and injured by Horn but had no memory of what happened “[a]fter [he] was struck.” Id. at 201. He denied making any sexual advance on Horn. Pardue's five recorded statements to police were admitted into evidence without objection and published for the jury. Pardue also testified to his medical issues since the head injury, including chronic headaches and memory loss.

[26] Pardue was cross examined extensively, despite his memory limitations. He was asked about his use of an alias on Craigslist and in his email and was asked about the near two-hour gap in time before he called 911. Defense Counsel also questioned Pardue about the layout of the crime scene and the lead up to the attack. For instance, Pardue was asked to identify where in the crime scene photographs his coffee had spilled on the ground, given that Pardue claimed to have walked inside to get his coffee before he was hit. Pardue could not remember if there was coffee in the cup. When Attorney Troemel pointed out blood on the pile of 2x4s in the crime scene photos, Pardue confirmed that he had fallen on the ground by the 2x4s, which had a sharp edge.

[27] Next, two of Pardue's medical providers testified about his injury. Dr. Mark Estes of IU Health testified that Pardue presented with a depressed skull fracture, though the means of the injury could not be definitively determined. Dr. Estes further testified that the injury was consistent with a hit from a hammer. When asked if the injury could have been caused by falling on the edge of a 2x4, Dr. Estes responded that the answer to these kinds of questions is mostly yes because “almost anything is possible.” Tr. Vol. III, p. 67. Neurosurgeon Dr. Randy Gehring testified about the reconstructive surgery he conducted on Pardue. When asked on cross-examination about memory loss resulting from a head injury, Dr. Gehring stated that amnesia typically occurs immediately after the injury. After a jury question to the same effect, Dr. Gehring testified that patients with concussions do not “tend to have delayed memory loss.” Id. at 82.

[28] Next, a DNA analyst testified to her examination of the electrical cord that Pardue reported was used to bind his hands. The analyst extracted DNA from the portion of the cord that appeared to have blood stains and determined the DNA matched Pardue's—specifically, the extracted DNA was at least 3 trillion times more likely to have come from Pardue than anyone else. When the cord was tested again for comparison with Horn's DNA, the result showed that the two extracted DNA profiles were 3.4 times more likely to belong to two unknown individuals as opposed to an unknown individual and Horn. Thus, the “analysis provide[d] just limited support for the proposition that Dakota Horn is excluded as a contributor to the DNA profile.” Id. at 96.

[29] Detective Ben Beutler testified as to his investigation into Nicole and Horn. He obtained surveillance video of Nicole using the Family Express ATM to make two withdrawals of $200 each on the day of the altercation. He also recovered bank records that showed additional attempts to use the ATM card: an unsuccessful withdrawal of $200 at 10:41 a.m. on the day of the altercation at the Tippecanoe County Mall, where Nicole worked; and two unsuccessful withdrawals of $200 and $400 the following day at 4:35 a.m. in Kokomo.

[30] Detective Beutler also described his two interviews with Nicole and his one interview with Horn. Body camera footage of those interviews was admitted and published for the jury. At one point on cross-examination, Detective Beutler acknowledged that he did not seek a search warrant for Horn's residence to look for the hammer reportedly used to strike Pardue.

[31] The jury found Horn guilty of six counts: Level 2 felony robbery resulting in serious bodily injury; Level 3 felony armed robbery; Level 3 felony criminal confinement; Level 3 felony aggravated battery; Level 6 felony conspiracy to commit fraud; and Class A misdemeanor theft. He was acquitted of conspiracy to commit robbery resulting in serious bodily injury and conspiracy to commit armed robbery, and the jury could not reach a verdict on conspiracy to commit criminal confinement. Horn was sentenced to 19 years for felony robbery resulting in serious bodily injury, 10 years for felony confinement, and 2 years for conspiracy to commit fraud. Those sentences were ordered to be served consecutively for 31 total years, with 5 years suspended.

Direct Appeal

[32] Horn appealed his convictions and sentence.¹ He first argued that the recordings of Pardue's statements to police were inadmissible as recorded recollections under Evidence Rule 803(5). This Court on appeal found the recordings were inadmissible on that basis because Pardue's inability to recall making the statements to police meant he could not lay an adequate foundation for their admission. See Horn v. State, No. 19A-CR-2575, 2020 WL 4280720, at *3 (Ind. Ct. App. 2020) (mem.). But because Horn failed to object to their admission at trial, the Court of Appeals reviewed the issue for fundamental error and found none. It explained that the recordings were “merely consistent with myriad other evidence,” including Pardue's testimony of the events leading up to and including being hit with a hammer, medical records, bank records, and the discovery of Pardue's phone and wallet along the side of a road. Id.

[33] Horn also disputed the trial court's redaction of some of Pardue's medical records and challenged his sentence, but the Court on appeal found no error on either claim and affirmed. Our Supreme Court denied transfer.

Post-Conviction Proceedings

[34] In June 2021, Horn petitioned for post-conviction relief, alleging his trial counsel, Attorney Troemel, provided ineffective assistance in various ways, including by failing to object to the admission of Pardue's recorded interviews—the same evidence this Court found inadmissible on direct appeal. The post-conviction court conducted an evidentiary hearing in March 2025, at which Attorney Troemel testified that he could not recall much about the case and could not remember whether he objected to the recordings.

[35] The post-conviction court denied Horn relief, concluding that he had failed to establish either prong of his ineffective-assistance-of-counsel claim. Horn filed a motion to correct errors, which was denied. He now appeals the denial of his petition for post-conviction relief.

Discussion and Decision

[36] Because post-conviction actions are civil proceedings, the petitioner bears the burden of proving his claim by a preponderance of the evidence. Guzman v. State, 279 N.E.3d 957, 965 (Ind. Ct. App. 2026) (citing Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) and Ind. Post-Conviction Rule 1(5)(2020)). As Horn appeals the denial of his petition for 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 v. State, 133 N.E.3d 673, 681 (Ind. 2019) (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). “In other words, [he] must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002)).

[37] We evaluate Horn's claim of ineffective assistance of counsel through the two-part test set out in Strickland v. Washington, 466 U.S. 668 (1984). See Isom v. State, 170 N.E.3d 623, 632 (Ind. 2021). To prevail, Horn had to show that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See id. Failure to establish either prong is fatal to the claim. State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014). We also note that the same judge presided over Horn's original trial and his post-conviction proceedings. In such situation, the judge is “uniquely situated” to assess an ineffective-assistance-of-counsel claim, and we give the resulting judgment “greater than usual deference.” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013), trans. denied.

[38] We need only address the first prong of the Strickland analysis—deficient performance—finding Horn's failure to prove it dispositive. Under this inquiry, we must determine whether Attorney Troemel's actions were reasonable under the prevailing professional norms, considering all the circumstances. See Isom, 170 N.E.3d at 632. In doing so, we consider counsel's knowledge and perspective at the time without subjecting counsel's decisions to the “distorting effects” of hindsight. Id. (quoting Strickland, 466 U.S. at 689).

[39] Trial counsel is given “considerable discretion in choosing strategy and tactics, and our review of counsel's performance is highly deferential.” Id. Accordingly, “[t]here is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Stevens, 770 N.E.2d at 746. This presumption can be overcome by showing that “counsel acted instead due to ignorance of the law.” Isom, 170 N.E.3d at 648 (citing Brewington v. State, 7 N.E.3d 946, 978 (Ind. 2014)).

[40] Here, Horn claims that Attorney Troemel performed deficiently by failing to object to the admission of the recordings.² Though the recordings were found to be inadmissible on direct appeal, “an objection to inadmissible evidence may be waived as part of reasonable trial strategy.” Nordstrom v. State, 627 N.E.2d 1380, 1385 (Ind. Ct. App. 1994); see Hinesley, 999 N.E.2d at 985 (finding failure to object to inadmissible vouching was part of reasonable trial strategy). That is because the “reasonableness of a trial strategy is not measured by its doctrinal cogency ․ but by its likelihood of actually obtaining an acquittal for the particular defendant, in the context of the particular case.” Brewington, 7 N.E.3d at 978.

[41] Horn contends there was no reasonable strategy for failing to object here because the recordings contained highly detailed statements that filled the gaps in Pardue's memory and included accusations of confinement and extraction of the PIN not covered by other evidence. Horn argues that Attorney Troemel merely “missed the issue.” Appellant's Reply Br., p. 20.³

[42] However, the record shows that the lack of objection was not the product of Attorney Troemel's ignorance, but part of a reasonable trial strategy to attack Pardue's credibility and bolster Horn's narrative. After all, this case was essentially a “credibility contest” between Horn's and Pardue's competing stories. Id. at 5. This strategy is evident in Attorney Troemel's conduct and is not merely “assembled from inference and hindsight,” as Horn claims. Id. at 6.

A. Reasonable Trial Strategy

[43] Horn argues that the recordings had no impeachment value because they filled the gaps in Pardue's trial testimony rather than contradicted it, but his view of the credibility attack is too narrow. Attorney Troemel used the recordings in numerous other ways to attack Pardue's credibility and bolster Horn's.

[44] First, Attorney Troemel contrasted the recordings with the physical evidence. For example, Pardue stated in the recordings that he was tied up with an electrical cord, but Attorney Troemel elicited testimony from investigating officers that no ligature marks were observed on Pardue's wrists. Importantly, DNA testing of the cord matched Pardue's profile but slightly excluded Horn. Attorney Troemel emphasized this in closing argument, stating that, although Pardue claimed Horn “used that cord to tie him up,” DNA testing of that cord “exonerates [Horn].” Tr. Vol. IV, p. 43. Attorney Troemel also stated: “If [Horn] tied [Pardue] up with that cord[,] his DNA should be on it because Pardue's DNA was on it.” Id. at 44. He concluded: “If you overlook this part of the trial it's going to haunt you.” Id.

[45] On this point, Horn argues that the recordings were particularly harmful because they constituted the only evidence of confinement. But that same evidence allowed trial counsel to impeach Pardue with DNA evidence that put his entire narrative into question. We cannot say it was objectively unreasonable for Attorney Troemel to choose this broader credibility attack rather than seek to eliminate evidence on a small portion of the ten total charges Horn faced. Horn's argument to the contrary is based on hindsight in that it focuses on the unsuccessful outcome of the strategy rather than its objective reasonableness under Strickland’s deferential standard. See Wilkes, 984 N.E.2d at 1245 (“That the defense strategy was ultimately unsuccessful does not mean that counsel was constitutionally ineffective.”).

[46] The recordings also contained Pardue's statements to police that, at the time of the incident, Horn said he felt threatened and accused Pardue of “looking at his butt.” State's Exh. 5 at 13:42-45. These statements were powerful pieces of evidence to bolster Horn's own narrative. They came from Pardue himself and were made shortly after the incident, which demonstrates that Horn's story was not invented after the fact as a cover. The recordings were the only source of these favorable statements spoken from the mouth of the victim himself.

[47] Additionally, Defense Counsel used statements originating from the recordings to argue that Pardue's post-altercation behavior was unusual. During cross-examination of Pardue, Attorney Dekker questioned him about calling his own phone and his bank before 911, as he reported in the recordings. Attorney Troemel continued this line of questioning during his cross-examination of Pardue. Attorney Dekker also questioned Pardue about being seen on video holding his coffee mug when officers initially responded to his 911 call, even though he testified the coffee had been spilled during the altercation. Attorney Troemel built off this questioning and asked Pardue about his coffee cup, to which Pardue responded that it could have been empty from the start.

[48] Finally, the recordings were strong evidence supporting the defense's strategy to cast doubt on Pardue's claimed amnesia. On cross-examination, Dr. Gehring acknowledged that memory loss following a head injury is typically immediate. Attorney Troemel then pointed to this testimony in closing arguments, recounting that Dr. Gehring “said the loss of memory would be instant and not delayed[, y]et [Pardue] claimed to have this complete memory two (2) hours after the striking.” Tr. Vol. IV, p. 39. Thus, the recordings of Pardue's detailed statements made in the hours and days following the incident were used to further the defense's argument that Pardue had a “selective memory.” Id. at 20.

[49] Considering the multiple ways in which defense counsel utilized the recordings against Pardue, the decision not to object to their admission fit into a reasonable defense strategy. And considering the other evidence against Horn—medical records, bank records, testimony of multiple police officers, testimony of Pardue's neighbor, the recovery of Pardue's phone and wallet on the roadside, and Pardue's own testimony of being attacked with a hammer—it was not objectively unreasonable for Attorney Troemel to employ this strategy. “There are countless ways to provide effective assistance in any given case.” Brewington, 7 N.E.3d at 977 (quoting Strickland, 466 U.S. at 689).

[50] The record supports the presumption that counsel's decisions were made “in the exercise of reasonable professional judgment.” Stevens, 770 N.E.2d at 746.

B. Trial Counsel's Identification of Admissibility Issue

[51] The record also shows that the failure to object was not the product of “unacceptable ignorance of the law.” Brewington, 7 N.E.3d at 977 (citation omitted). Therefore, Horn cannot overcome the presumption of reasonable trial strategy. See id. This is particularly evident in the discussion of the recordings at a pretrial hearing.

[52] There, Attorney Troemel raised a concern about the foundation for the recordings, stating: “There's a brand new case that came out addressing this very issue ․ [that] cites Ballard v. State 877 N.E.2d 860 [sic] Court of Appeals case. Basically ․ they've got to lay a foundation when they do this.” Tr. Vol. II, pp. 40-41. This issue of foundation, and the Ballard case itself, was cited in Horn's direct appeal as the basis for the recordings’ inadmissibility.

[53] Attorney Troemel then requested that Pardue testify to try to lay the foundation. Pardue did so, and Attorney Troemel observed that he was “close to making the foundation.” Id. at 50. He remarked: “It's arguable whether or not he did[,] but he's got to testify.” Id. When asked for his position on admission of the tapes, Attorney Troemel responded:

Can I have a second? ․ [Horn] doesn't have any objection to the playing of the tapes or the discs that you have in front of you as long as Mr. Pardue testifies․ That in no way is intended as a waiver of any kind of cross examination.

Id. This is not the conduct of an attorney who “missed the issue.” Appellant's Reply Br., p. 20.

[54] To support his argument to the contrary, Horn cites Attorney Troemel's testimony at the post-conviction hearing, which occurred nearly six years after trial. There, Attorney Troemel testified that he had been practicing criminal law for over 30 years and could not remember many of the specifics of Horn's case. He recalled that it was essentially a “factual fight” with multiple “evidentiary skirmishes.” Post-Conviction Tr., pp. 16-17. When asked about the recordings, Attorney Troemel could not recall whether he raised an objection or even what evidence was ultimately admitted. When asked if he recalled “any trial strategy for leaving [the recordings] in,” Attorney Troemel responded: “I'm just not conversant with his testimony right now․ But in general, I think what you're getting at is if there was evidence admitted that I should have tried to keep out and didn't then shame on me.” Id. at 19.

[55] Read in context, Attorney Troemel's testimony is not an admission that he overlooked the foundation issue, as Horn now argues. Testifying years after trial, Attorney Troemel simply could not recall the details one way or the other. Attorney Troemel's testimony was essentially “a blank,” as Horn admits. Appellant's Reply Br., p. 20.⁴

[56] Finally, we reject Horn's comparison to Myers v. Neal, 975 F.3d 611 (7th Cir. 2020). In the relevant portions of that case, the Seventh Circuit determined that the Indiana Court of Appeals wrongly found a reasonable trial strategy because it was “assumed without any evidentiary foundation in the record” and trial counsel testified at the post-conviction hearing that he could not recall any reason for failing to object. Id. at 621. The Seventh Circuit concluded that, “[p]lain and simple, counsel missed the issue.” Id. Here, the documented uses of the recordings by Attorney Troemel to attack Pardue's credibility provides an “evidentiary foundation” for the reasonable trial strategy. Id. And Attorney Troemel's on-the-record consideration of the foundation issue shows that he did not simply miss the issue but made an informed decision.

Conclusion

[57] We cannot say that the evidence “unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision” that Horn failed to prove deficient performance by his trial counsel. Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl, 738 N.E.2d at 258). The record—particularly Attorney Troemel's colloquy at the pretrial hearing, his cross-examination of Pardue and his treating physicians at trial, and his closing argument—demonstrates that Attorney Troemel's decision not to object was a strategic choice made with awareness of the foundation issue. Aware that the case came down to the credibility of the two competing versions of events, Attorney Troemel sought full acquittal by employing a strategy that would allow more opportunities to attack the credibility of the victim's narrative.

[58] Because Horn's claim fails on the deficient performance prong, we need not reach prejudice. See Greene, 16 N.E.3d at 419. We affirm the trial court's denial of Horn's petition for post-conviction relief.

FOOTNOTES

1.   After their joint jury trial, Nicole and Horn proceeded separately on appeal. Nicole was not a party to these post-conviction proceedings.

2.   Horn does not challenge the post-conviction court's rejection of his ineffectiveness claim on the other five grounds raised in his petition.

3.   Horn disputes the State's characterization that Horn and Nicole presented a joint defense, emphasizing that Nicole was not harmed by the recordings’ admission into evidence. But Horn does not ask us to disregard the conduct of Nicole's counsel, Attorney Dekker, and we cannot do so here. The defenses were admittedly “intertwined.” Appellant's Reply Br., p. 10. And Attorney Troemel incorporated Attorney Dekker's arguments multiple times during trial. See Tr. Vol. II, p. 195 (waiving additional opening statement because he was “very pleased with Mr. Dekker's”); Tr. Vol. IV, p. 38 (giving separate closing statement but noting he would not “repeat what Brian [Dekker] said”). Ultimately, we focus on Attorney Troemel's own performance but consider Attorney Dekker's conduct that was part of their intertwined defense.

4.   Given Attorney Troemel's inability to recall the specifics of the case, we are similarly unpersuaded by Horn's reliance on Attorney Troemel's statement that “we would've gotten a directed verdict” if “Mr. Pardue's version of events were excluded” and “[Pardue] couldn't testify about what happened.” Post-Conviction Tr., p. 17. Additionally, this statement does not appear to address the exclusion of the recordings, but the exclusion of Pardue's narrative and testimony more broadly. Again, Pardue could testify about everything leading up to and including being struck in the head.

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur