Kurtis L. Shorter, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Kurtis L. Shorter appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred in finding he did not receive ineffective assistance of trial counsel. We affirm.

Facts and Procedural History

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

While on patrol at approximately 2:30 a.m. on October 22, 2016, Elkhart Sheriff's Department Officer Robert Smith's attention was drawn to a green Pontiac G6. While following behind the vehicle, Officer Smith observed as the vehicle “kind of veer[ed] from the south to the north” and “the tires of the vehicle, the right tires, went off the road onto the gravel portion across the white line.” Tr. Vol. III p. 56. Officer Smith further observed the vehicle make a turn and, although the driver “used their turn signal,” the driver did not satisfy the statutory requirement that a driver engage her turn signal two hundred feet before turning. Tr. Vol. III p. 56. Officer Smith initiated a traffic stop.

At the time of the traffic stop, there were two individuals, one female and the other male, inside the vehicle. Haven Chamberlain was driving and Shorter was sitting in the front passenger seat. Given that it was dark outside at the time of the traffic stop, Officer Smith used a flashlight to aid his ability to see the occupants of and the general vicinity in and around the vehicle.

As Officer Smith approached the vehicle, he began “smelling a chemical odor that [he] recognized to be a synthetic drug.” Tr. Vol. III p. 59. The smell got “stronger as [he] got closer” to the vehicle. Tr. Vol. III p. 59. The smell “was emitting from the vehicle ․ through [the] driver's window.” Tr. Vol. III p. 59.

After smelling the odor of a synthetic drug emanating from the vehicle, Officer Smith returned to his vehicle and “radioed for a backup unit.” Tr. Vol. III p. 60. When he believed the backup unit was in the general vicinity and would arrive soon, Officer Smith approached the vehicle for a second time and requested that Chamberlain exit the vehicle. Officer Smith did not notice anything at Chamberlain's feet either of the first two times he approached the vehicle. When the assisting officer arrived a minute or two later, the assisting officer asked Shorter to step out of the vehicle and stand near where Officer Smith and Chamberlain were standing.

Due to the smell of synthetic drugs emanating from the vehicle, Officer Smith and the assisting officer searched the vehicle. Officer Smith began by searching the area around the front driver's-side door. He found “a loose greenish substance in the door panel and in the center console” that, based on his training and experience as an officer, he believed to be synthetic drugs. Tr. Vol. III p. 68. He also found a backpack “on the driver's floorboard” that had not been present when Chamberlain exited the vehicle. Tr. Vol. III p. 68. Officer Smith unzipped the backpack and looked inside, finding “men's cologne, doo-rag, a digital scale, some more synthetic marijuana, err, I'm sorry, synthetic drug, marijuana, a Ruger .380 semi-automatic pistol ․ a man's belt and there was mail belonging to Kurtis Shorter in there as well.” Tr. Vol. III p. 69. The mail, which included legal documents, had Shorter's name and address “printed on the envelopes and on the paperwork.” Tr. Vol. III p. 69. Officer Smith field tested and weighed the marijuana, with the test confirming the presence of 24.8 grams of marijuana. Officer Smith also weighed the synthetic drugs, confirming the presence of 97.3 grams of synthetic drugs. The marijuana and synthetic drugs were stored “in a large gallon size baggie and inside that there was [sic] smaller baggies, like sandwich baggies with the substance in them.” Tr. Vol. III p. 70.

On October 26, 2016, the State charged Shorter with Level 5 felony possession of a handgun without a license with a prior conviction, Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance, [and] Class B misdemeanor possession of marijuana. Shorter subsequently filed a motion to suppress “any and all items seized from the car” during the traffic stop. Appellant's App. Vol. II p. 33. On June 12, 2017, the State amended the Class A misdemeanor carrying a handgun without a license charge to a charge of Level 4 felony SVF. The State also alleged Shorter to be a habitual offender.[1] On July 18, 2017, Shorter filed a motion to dismiss the habitual-offender enhancement.

The trial court conducted a hearing on July 20, 2017, during which it heard argument relating to both Shorter's motion to suppress and motion to dismiss the habitual-offender enhancement. On August 24, 2017, the trial court issued a written order denying Shorter's motion to suppress. The trial court denied Shorter's motion to dismiss the habitual-offender enhancement on September 21, 2017.

Following a jury trial, on January 25, 2018, the jury returned a verdict of guilty for Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance. However, the jury was unable to reach a verdict on the remaining counts. On October 10, 2018, following a retrial, Shorter was found guilty of the remaining counts. In a bifurcated portion of the trial, the jury also found Shorter to be an SVF as alleged in the amended firearm-possession charge. In the final trifurcated portion of the trial, the jury found Shorter to be a habitual offender. On November 12, 2018, the trial court sentenced Shorter to an aggregate thirty-year sentence.

Shorter v. State, 144 N.E.3d 829, 833-35 (Ind. Ct. App. 2020), trans. denied. Shorter appealed, arguing (1) the traffic stop was unconstitutional and thus any evidence seized as a result should not have been admitted, (2) the evidence was insufficient to support his convictions, and (3) the trial court erred in denying his motion to dismiss the habitual-offender enhancement. This Court affirmed.

[3] In May 2021, Shorter filed a petition for post-conviction relief, arguing in part that his trial counsel, Attorney William Cohen, was ineffective. A hearing was held in June 2025, after which the post-conviction court denied Shorter's petition. Shorter now appeals. Additional facts will be provided as necessary.

Discussion and Decision

[4] The petitioner in a post-conviction proceeding must prove the grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Shorter is appealing a negative judgment; therefore, he must show the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. Although we do not defer to the post-conviction court's legal conclusions, “a post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” State v. Damron, 915 N.E.2d 189, 191 (Ind. Ct. App. 2009), reh'g denied, trans. denied.

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

I. Expert Testimony

[6] Shorter first argues Attorney Cohen was ineffective for failing to present expert testimony.

An attorney may perform deficiently by failing to present necessary expert witness testimony. See, e.g., Carew v. State, 817 N.E.2d 281, 288 (Ind. Ct. App. 2004) (holding appellate counsel performed deficiently by failing to challenge on appeal the trial court's exclusion of expert testimony), trans. denied. “Expert testimony is appropriate when it addresses issues not within the common knowledge and experience of ordinary persons and would aid the jury.” Miller, 770 N.E.2d at 773. “When [jurors] are faced with evidence that falls outside common experience, we allow specialists to supplement the jurors’ insight.” Carter v. State, 754 N.E.2d 877, 882 (Ind. 2001), reh'g denied. Yet, the decision whether to call an expert witness is still generally a strategic decision that we will not second guess. Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009), trans. denied. We “will not declare counsel ineffective for failure to call a particular witness absent a clear showing of prejudice.” Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000), cert. denied, 534 U.S. 830, 122 S. Ct. 73, 151 L.Ed.2d 38 (2001).

Malloch v. State, 223 N.E.3d 683, 698-99 (Ind. Ct. App. 2023), trans. denied.

[7] At the post-conviction hearing, Shorter presented expert testimony from Nicholas Funk, a traffic-crash investigator and reconstructionist. Funk testified that based on Officer Smith's dashcam video, he believed Chamberlain activated her turn signal well over two hundred feet before turning. Shorter contends Attorney Cohen was deficient for not procuring this type of expert testimony to challenge the constitutionality of the traffic stop.² We disagree.

[8] Prior to trial, Attorney Cohen filed a motion to suppress, arguing the traffic stop was unconstitutional in part because Chamberlain did not commit a traffic infraction justifying a stop. At the hearing, trial counsel played Officer Smith's dashcam video and cross-examined Officer Smith regarding the turn signal issue. Trial counsel also filed a brief in support of the motion to suppress, in which he argued at length that both the video and Officer Smith's testimony failed to show a traffic violation. Attorney Cohen similarly objected to Officer Smith's testimony at both trials. However, Attorney Cohen did not present any expert testimony.

[9] At the post-conviction hearing, Attorney Cohen testified he did not hire an expert witness because he did not think there was “any reason to hire an expert in a case of this nature” where the issue was “a question of fact ․ that's up for the judge or the jury to determine.” Tr. Vol. II p. 78. He further stated he decided not to hire an expert because “it would have served no purpose because the video spoke for itself.” Id. at 87. In other words, trial counsel made the strategic decision that expert testimony was not needed and instead to rely on the video and on cross-examination. We will not second guess that decision, and we hold that trial counsel did not perform deficiently in choosing not to call an expert witness. See Malloch, 223 N.E.3d at 698 (trial counsel was not deficient in making the “reasonable tactical decision” to advance his defense theory through cross-examination and the defendant's own testimony rather than through expert testimony).

II. Closing Argument

[10] Shorter also asserts his trial counsel provided ineffective assistance by failing to object to comments made by the prosecutor during closing argument. “To prove ineffective assistance for failure to object to the State's closing argument, a defendant must prove that his objections would have been sustained, that the failure to object was unreasonable, and that he was prejudiced.” Lambert v. State, 743 N.E.2d 719, 734 (Ind. 2001) (quoting Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997)).

[11] Shorter first argues trial counsel should have objected to the following remarks by the State in closing: (1) that Chamberlain “bought that gun for Kurtis Shorter because he wanted her to” and (2) the State rhetorically asking “if this was [Chamberlain's] work bag why weren't any of her items in there?” Ex. 2B pp. 237-38; Ex. 2C p. 213. Shorter argues these comments state facts not in evidence. Specifically, he argues there is no evidence Chamberlain purchased the gun for Shorter, nor any evidence that the items in the bag were not hers.

[12] “Although prosecutors may not argue facts not in evidence, they may properly argue their own analysis of the evidence.” Spangler v. State, 498 N.E.2d 1206, 1209 (Ind. 1986). The evidence at trial showed Chamberlain purchased the gun, but she gave inconsistent reasons for doing so. Furthermore, although Chamberlain testified the backpack the gun was found in was hers, she could not identify most of the other items in the bag. These items included men's cologne, a man's belt, a doo-rag, and mail with Shorter's name on it. Given Chamberlain's testimony and the items found, the State's comments that she may have purchased the gun for Shorter and that the items in the bag were not hers were fair characterizations of the evidence and not improper. See Wrinkles v. State, 749 N.E.2d 1179, 1197 (Ind. 2001) (finding prosecutor's comments in closing were not improper where they were fair characterizations of the evidence).

[13] Next, Shorter argues trial counsel should have objected to the State's remarks that Officer Smith did not have “an interest in this case” or a “dog in this fight” and merely told the jury “what he saw and what he didn't see.” Ex. 2C p. 212. Shorter contends these remarks constituted improper vouching. But even if these comments would generally be objectionable, we note these were made in response to defense counsel's own closing remarks, in which he questioned Officer Smith's credibility. Attorney Cohen stated:

[T]here's no corroboration of Officer Smith's testimony that the bag was there when he first saw [Chamberlain]. Now he wants to tell you that he was somehow able to see that bag as she's sitting there in the driver's seat and he's able to shine his flashlight down there and see whether there's a bag or not. Huh? Seriously? He couldn't tell and I'm not saying he's lying to you, he's mistaken about that. I give him — I give him credit. I think he's an honest fellow. He's trying to tell you the best he remembers it, but he's got a point of view too. He's the arresting officer. This is his case. This is his baby. And he wants to now tell you, two year[s] later, that he was able to see that there was no bag, even though her legs were obscuring whatever might have been.

Id. at 198-99. Given these comments, the State's response emphasizing the neutrality of Officer Smith was not improper, as a “prosecutor is entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable.” Hand v. State, 863 N.E.2d 386, 395 (Ind. Ct. App. 2007).

[14] Shorter also argues Attorney Cohen should have objected to the following remarks by the prosecutor:

No, we didn't send [the gun] for fingerprints, we didn't send it for DNA and I'll tell you exactly why. It's an issue of resources. It's an issue of tax payer dollars. And it's an issue of a backlog. I'm not sending a gun for fingerprints and DNA. I'm not sending a backpack for DNA that has a man's belt, a man's doo-rag, men's cologne and his name on paperwork.

Ex. 2C p. 211. Shorter argues through these remarks the State “inappropriately acted as a witness[.]” Appellant's Reply Br. p. 19. But again, these comments were in the State's rebuttal, and were directly addressing the following comments Attorney Cohen made in his closing:

I find this incredulous. So they take the gun; they got the gun; they've had the gun since October 22nd, of 2016. Two years they've had that gun just about. And you know what, not [one] single person, not one fingerprint expert looked at this gun and checked that gun for fingerprints. Now that's the best evidence. If there were fingerprints, let's look for ‘em; let's prove it beyond a reasonable doubt. If there's a fingerprint and it matched the Defendant, well then they got a case to talk about, but they don't have that. That's why they don't have anything to talk about here cause they have no fingerprint.

Ex. 2C at 200. As noted above, even assuming the State's comments were objectionable, such comments were proper in response to defense counsel's closing.

[15] In sum, Shorter has not shown that an objection to any of these challenged comments, if made, would have been sustained. Furthermore, we cannot say failing to object here was unreasonable, given Attorney Cohen “may have had a strategic reason for not objecting, such as that an objection would have called even more attention to the prosecutor's remarks.” Wrinkles, 749 N.E.2d at 1197; see also Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998) (trial counsel was not ineffective for failing to object to prosecutor's closing remarks as “failure to object could well have been a strategic decision by counsel”). Thus, Shorter has not shown Attorney Cohen was deficient in failing to object to the prosecutor's remarks in closing argument, and the post-conviction court did not err in concluding that counsel was not ineffective.

III. Habitual Offender Enhancement

[16] Finally, Shorter argues Attorney Cohen provided ineffective assistance by “fail[ing] to properly object to the habitual offender enhancement[.]” Appellant's Br. p. 39. Specifically, Shorter argues his trial counsel should have made two objections regarding the habitual-offender enhancement: (1) that the enhancement violated Indiana Code section 35-50-2-8(e), and (2) that the late amendment to add the enhancement was improper.

[17] Shorter first argues his trial counsel should have objected to the State's amendment adding the habitual-offender enhancement under Indiana Code section 35-50-2-8(e), which provides:

The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if the current offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction. However, a prior unrelated felony conviction may be used to support a habitual offender determination even if the sentence for the prior unrelated offense was enhanced for any reason, including an enhancement because the person had been convicted of another offense.

[18] Shorter argues trial counsel should have argued that the habitual-offender enhancement here violated Section 35-50-2-8(e). Specifically, he asserts he “originally [was] charged with a misdemeanor offense that was enhanced to a felony in the same proceeding and, therefore, was not eligible for the habitual offender enhancement.” Appellant's Br. p. 41. Shorter was initially charged with Level 5 felony possession of a handgun without a license, which was enhanced from a Class A misdemeanor due to his having a prior conviction. But the State later amended the charging information and removed the Level 5 felony charge, replacing it with Level 4 felony possession of a firearm by a serious violent felon. Trial counsel could not have objected on the basis that the Level 5 felony and the habitual-offender enhancement constituted a double enhancement, because Shorter was no longer charged with the Level 5 felony. As such, we cannot say trial counsel's failure to do this is deficient performance.

[19] Shorter also argues trial counsel should have objected to the State's amendment adding the habitual-offender enhancement as untimely.³ But again, Shorter cannot show such an objection would have been sustained. Indiana Code section 35-34-1-5(b) allows an indictment or information to be amended in matters of substance any time before the commencement of trial if the amendment does not prejudice the substantial rights of the defendant. When determining if a defendant's substantial rights have been prejudiced, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges. Hobbs v. State, 160 N.E.3d 543, 551 (Ind. Ct. App. 2020), trans denied. Furthermore, Indiana Code § 35-34-1-5(e) provides an amendment of information to include a habitual-offender charge must be made at least thirty (30) days before the commencement of trial.

[20] Here, the State moved to amend to add the habitual-offender enhancement on June 12, 2017. While this is well after the omnibus date, there is no suggestion in the record that the amendment prejudiced Shorter's substantial rights, especially given at this time a trial date had not even been set. Shorter did not go to trial until January 2018, and he was not tried on the habitual-offender allegation until October 2018. The record also indicates Shorter was aware during plea negotiations prior to June 2017 that the State would seek to add the habitual-offender enhancement if plea negotiations were unsuccessful. Thus, it appears even with the late amendment that Shorter had a reasonable opportunity to prepare for and defend against the enhancement. Ultimately, the post-conviction court concluded that even if Attorney Cohen had objected on the basis of timeliness, the State would still have been permitted to amend the information. We cannot say that the evidence as a whole unerringly and unmistakably leads us to the opposite conclusion. We therefore find Shorter has failed to demonstrate his trial counsel was ineffective in this, or any, manner.

[21] Affirmed.

FOOTNOTES

1.   The State originally charged Shorter under Cause No. 20D02-1610-F5-000271. After the State amended the charges, the case was reassigned under Cause No. 20D02-1801-F4-000002.

2.   Shorter also argues Attorney Cohen failed to “properly utilize the video evidence as proof that [Chamberlain] signaled her turn well beyond the 200-foot threshold.” Appellant's Br. p. 20. But aside from presenting expert testimony, Shorter does not tell us what more trial counsel could have done to properly utilize the video evidence. As such, we address only whether counsel was ineffective in failing to procure expert testimony.

3.   We note there is some dispute in the record as to whether trial counsel objected on this basis. Attorney Cohen testified at the post-conviction hearing that he did object on this basis, and the State asserts as much in its Appellee's Brief. Our review of the record finds the same. Following the State's June 12, 2017 motion to amend, Attorney Cohen filed “Defendant's Objection to State's Motion to Amend Charging Information” on July 6, 2017. See Appellee's App. Vol. II pp. 2-7; see also Cause No. 20D02-1610-F5-271. In that motion, Shorter objected to the amendment under the “total circumstances” of the case, including the timeline of the case and the breakdown of plea negotiations. Appellee's App. Vol. II p. 5. A hearing was held on July 20, 2017, but we were not provided the entire transcript, and it is unclear what issues were addressed at that hearing. On September 21, 2017, the trial court denied Shorter's Objection in an order also addressing the motion to dismiss. Notably, Shorter did not provide “Defendant's Objection to State's Motion to Amend Charging Information” to us in his direct appeal or in this instant appeal. On direct appeal, we found Shorter had waived this issue for failure to assert it in the trial court. Given the confusion in the record on the issue—and given we conclude that a failure to object here would not have been deficient performance anyway—we will assume that Attorney Cohen failed to object on this issue.

Scheele, Judge.

May, J., and Pyle, J., concur.