Theodis Demarcus Washington, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Theodis Demarcus Washington appeals from the post-conviction court's order denying his petition for post-conviction relief. He argues that, contrary to the post-conviction court's findings, he received ineffective assistance of trial counsel. Having reviewed the record and the issues presented, we conclude that the post-conviction court did not err. Thus, we affirm.

Facts and Procedural History

[2] On April 30, 2015, Indiana State Police Trooper Nathan Teusch observed a Ford SUV speeding, and he initiated a traffic stop. Upon approaching the vehicle, the trooper detected the odor of burnt marijuana coming from the vehicle. The driver was identified as Jeremiah Underwood, while Washington was seated in the front passenger seat. When Washington exited the vehicle, Trooper Teusch smelled the odor of burnt marijuana on his person. Washington received his Miranda rights advisement and indicated to the trooper that he understood them. During a preliminary search, Trooper Teusch located $4,161.00 on Washington, which Washington claimed represented proceeds from a tax return. Washington admitted that he smoked marijuana before the traffic stop.

[3] Washington County Sheriff's Department Deputy Joseph Keltner provided assistance during the stop. He and Trooper Teusch searched the vehicle and discovered the following items: (1) a small plastic corner bag containing a white powdery substance, which based on his training and experience, as well as a field test, Trooper Teusch believed to be heroin; (2) five pink Hydrocodone tablets; one white Hydrocodone tablet; two green Oxycodone tablets; nine Suboxone packets; a plastic baggy containing a green plant-like material suspected of being marijuana; a firearm with a fully loaded magazine and live round in the chamber that was underneath the front passenger seat; one partially burnt hand-rolled cigarette containing suspected marijuana on the driver's-side floorboard; and two cell phones.

[4] The evidence was secured and transported to the Indiana State Police lab for testing. Testing confirmed the identity of the substances recovered during the vehicle search. The two white powdered substances were confirmed to be heroin, weighing 1.19 grams and 1.36 grams, respectively. In Trooper Teusch's experience conducting drug investigations, heroin is sold in smaller amounts of around a tenth of a gram because of heroin's potency.

[5] During transport to jail, Washington became extremely belligerent and angry. He yelled and cursed at Trooper Teusch, unbuckled his seatbelt, kicked the passenger door, and indicated that he was going to spit on the officer. He also attempted to exit the moving vehicle. Trooper Teusch had to stop his vehicle on two different occasions due to Washington's behavior.

[6] After his arrival at the jail, Washington stated that he had swallowed drugs and placed drugs in his rectum. He was then transported to a hospital to be medically cleared prior to being booked into the jail. While at the hospital, Washington was uncooperative with the medical staff, stating that he would sue anyone who touched him without having a search warrant, while at the same time stating that “there was going to be hell to pay” if the “bag” of “drugs” in his “stomach” bursts. DA Tr. Vol. 3, p. 43. Washington refused medical help and was transported back to the county jail. He threatened Trooper Teusch, stating that if the “drugs in [his] stomach busts open[,]” he would sue the officer. Id. at 44.

[7] During the investigation, data from the cell phones in the vehicle was extracted and forensically examined. The data from Washington's phone showed that he identified himself on text messages with several individuals, and the messages were consistent with multiple drug transactions that involved heroin and other illegal substances. One of the individuals Washington exchanged messages with was someone identified as “Heaven.” Id. at 87-89. Further investigation revealed that the firearm found under Washington's seat in the car had previously been purchased by an individual whose first name was Heaven.

[8] On May 4, 2015, Washington made a phone call from jail to Marquetta Underwood. In that call, Washington said that his friend Jeremy “had nothing to do with the stuff that was in the vehicle.” Id. at 150. Washington continued, “I just need to get off the drugs.” Id. He told Marquetta that he felt bad that Jeremy was arrested with him and told her “I refuse to let him be in trouble for things that was mine. He had no knowledge of knowing that was in that vehicle, so he should not be punished for stuff that is not his.” Id. at 151. He explained to her, “I messed up honestly” and said that he told his attorney that “Jeremy is not to be going to jail or any of that stuff for my stuff.” Id. He continued, “I'm so sorry for getting Jeremy up in my mess ․ he does not deserve to be in jail ․ he should not be in jail for my screw up. I almost got your truck token[sic] away from you. I feel awful.” Id. at 153. He shared that, “I feel like a horrible human being for it, for what I put Jeremy through and what I put you through.” He indicated that he “[g]ot strung out on drugs and just couldn't stop.” Id. He apologized again, saying “I'm so sorry that I got Jeremy into this.” Id. at 157.

[9] The same day, the State charged Washington with Level 4 felony possession of a firearm by a serious violent felon, Level 5 felony possession of a narcotic drug, Level 6 felony possession of marijuana, four counts of Level 6 felony possession of a controlled substance, and Level 6 felony maintaining a common nuisance. The State also alleged that Washington was an habitual offender. After entering into and then withdrawing from a guilty plea, Washington's case proceeded to jury trial.

[10] On February 9, 2017, the State filed a motion to amend several counts, which the trial court granted that day. On March 3, 2020, the three-day jury trial began. At trial, Washington testified that he was aware that there was marijuana in the vehicle, but disclaimed knowledge of the presence of the other drugs or the firearm.

[11] While testifying on direct examination about where he lived prior to his arrest in this matter, Washington stated that he was arrested for driving without a license in Clarksville. Id. at 204. He said that “after I was released from there I went to Marion County and when I got released from Marion County Jail I stayed in Indianapolis.” Id. He also testified about his bond schedule in Marion County and stated that he “made some bad decisions.” Id. at 211. The State argued that this testimony had “opened up all the 404(b) information, [and] his entire criminal history.” Id. at 222. The trial court ruled that Washington's testimony opened the door to questioning about his arrest in Clark County, his time in the Marion County Jail and the bond schedule there, as well as the bad decisions that Washington stated he had made. The court said it would “allow [defense counsel] to object” to “questioning if [counsel felt] like [the questioning had] gone beyond” what was discussed and that objections could be discussed out of the jury's presence. Id. at 223.

[12] On cross-examination, the State questioned Washington about his arrest in Clark County, his time in the Marion County Jail, and the bad decisions he had referenced. Without objection, the State established that Washington had prior convictions for felony armed robbery, felony criminal recklessness, possession of marijuana, and dealing in marijuana. The State also cross-examined Washington about his violation of pretrial release in the current case by selling heroin, his guilty plea to being a felon in possession of a firearm in another case, and his withdrawn guilty plea in the present case.

[13] Additionally, on cross-examination Washington refuted telling anyone he had swallowed drugs or put them in his rectum on the day of his arrest in this matter. He testified that he had no idea why he was transported to the hospital by police. And he claimed that the reason he accepted the blame for all of the items in the vehicle during his jail phone call and stated that Jeremy was not involved was so Jeremy could be released from jail in order to help Washington bond out.

[14] The jury found Washington guilty of Level 3 felony dealing in heroin, Class A misdemeanor possession of marijuana, four counts of Level 6 felony dealing in a controlled substance, and Class A misdemeanor carrying a handgun without a license. During the second phase of the trial, the jury found Washington guilty of Level 4 felony possession of a firearm by a serious violent felon and subsequently determined that he was an habitual offender. A panel of this Court affirmed Washington's convictions and sentence on direct appeal. See Washington v. State, No. 20A-CR-914 (Ind. Ct. App. Feb. 24, 2021) (mem.).

[15] Next, Washington pursued post-conviction relief. He claimed, in relevant part, in his petition that his trial counsel was ineffective for failing to object to the evidence of his prior convictions and withdrawn guilty plea.¹ An evidentiary hearing was held on February 12, 2026, during which Washington admitted into evidence the record of his direct appeal. Washington testified that before trial his attorney did not discuss with him whether he should testify, but counsel suggested during trial that he should. He also introduced a joint stipulation that his trial counsel was diagnosed with terminal colon cancer in 2017 and died in 2020. The post-conviction court took the matter under advisement and denied the petition on March 25, 2026.

Discussion and Decision

[16] Washington appeals, contending the post-conviction court erred by denying his petition for post-conviction relief. He contends that trial counsel performed deficiently by failing to object to Indiana Evidence Rule 404(b) evidence, including his previously withdrawn guilty plea.

[17] “ ‘The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.’ ” Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). “ ‘When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.’ ” Id. “To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Hollowell, 19 N.E.3d at 269. Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). “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.’ ” Hollowell, 19 N.E.3d at 269 (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted)).

[18] To prevail on his claims of ineffective assistance of trial counsel, Washington must show (1) that his counsel's performance fell short of prevailing professional norms and (2) that counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 690-91 (1984). “A showing of deficient performance under the first of these two prongs requires proof that legal representation lacked ‘an objective standard of reasonableness,’ effectively depriving the defendant of his Sixth Amendment right to counsel.” Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019) (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). “Although the performance prong and the prejudice prong are separate inquiries, failure to satisfy either prong will cause the claim to fail.” Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). “If we can easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel's performance was deficient.” Id. “Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone.” Id.

[19] “To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome.” Gibson, 133 N.E.3d at 682. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

[20] And Washington has alleged ineffective assistance of counsel based on the failure to object. “In order to prove ineffective assistance of counsel due to the failure to object, a defendant must prove that an objection would have been sustained if made and that he was prejudiced by the failure.” Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001) (emphasis added).

[21] “Even the best and brightest criminal defense attorneys may disagree on ideal strategy or the most effective approach in any given case.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). Counsel's performance is presumed effective, and a petitioner must offer strong and convincing evidence to overcome this presumption. Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). “Isolated poor strategy or bad tactics do not necessarily amount to ineffective assistance of counsel.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). “Reasonable strategy is not subject to judicial second guesses.” Ingalls v. State, 187 N.E.3d 233, 247 (Ind. Ct. App. 2022) (cleaned up), trans. denied. “This Court will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener, 696 N.E.2d at 42.

[22] Trial counsel was deceased by the time the evidentiary hearing was held in Washington's post-conviction proceedings. Thus, we do not have the benefit of his explanation of the trial strategy. A joint stipulation informed the post-conviction court that trial counsel had been diagnosed with Stage 4 terminal colon cancer in 2017. An affidavit filed by the former chief public defender of Washington County averred that he stopped assigning cases to Washington's trial counsel based on his health and his performance in court. Therefore, we turn to the record before the post-conviction court.

[23] Here, as acknowledged by the court, “[b]y failing to object to inadmissible 404(b) evidence, trial counsel permitted the jury to learn that Washington had previous felony convictions for armed robbery, criminal recklessness, dealing in marijuana, and the facts underlying each of those convictions. Washington was on trial in this case for possessing a firearm and marijuana.” Appellant's App. Vol. 3, p. 70. The court additionally noted that, “[b]y failing to object to inadmissible 404(b) evidence, trial counsel permitted the jury to learn that Hamilton County charged Washington with being an SVF in possession of a firearm and the underlying facts of the Hamilton County case. Washington was on trial in this case for being a SVF in possession of a firearm.” Id. And, “[w]ithout any 404(b) objection from defense counsel, the State cross-examined Washington on violating the terms of his pretrial release in this case by selling heroin at Serenity House.” Id. at 67. The court also found that “[w]ithout any 404(b) objection from defense counsel, the State cross-examined Washington on his withdrawn guilty plea in this very case.” Id. at 68.

[24] However, as the post-conviction court observed, “[w]here the evidence of guilt is strong or overwhelming, a petitioner cannot establish prejudice under [Strickland].” Id. at 70. Even if counsel had successfully excluded the Rule 404(b) evidence referenced above, Washington has failed to demonstrate that the alleged error had a reasonable probability of affecting the outcome of his trial. “Reviewing courts have found insufficient Strickland prejudice even where counsel's performance led to the admission of damaging evidence if there was significant, additional evidence of the defendant's guilt.” Williams v. State, 160 N.E.3d 563, 580 (Ind. Ct. App. 2020), trans. denied.

[25] Here, the following non-Rule 404(b) evidence was before the jury: (1) Washington was present in the vehicle where the drugs were located; (2) the firearm which was recovered was underneath his seat; (3) he was in possession of a large amount of cash; (4) his text messages showed numerous conversations that were consistent with drug transactions and with the drugs found near where he was seated in the car; (5) Washington identified himself in the text messages; (6) Trooper Teusch explained that the contents of the text messages were indicative of Washington dealing in heroin, Suboxone, methamphetamine, and hydrocodone; (7) Washington exchanged text messages with an individual referred to as Heaven; (8) the firearm found underneath Washington's seat had previously been purchased by an individual whose first name was Heaven; (9) Washington attempted to escape from the police vehicle several times, demonstrating consciousness of guilt; (10) Washington told jail staff that he had ingested drugs and placed drugs in his rectum; and (11) Washington admitted in a recorded jail call to Marquetta Underwood that the items found in the vehicle when he was arrested were his, that Jeremy had nothing to do with the items found in the vehicle, and that he needed to stop using drugs.

[26] Washington argues that analyzing the evidence in this manner amounts to a sufficiency of the evidence analysis, inappropriate for this type of review. Reply Br. pp. 4-5. But, in the context of post-conviction relief, we examine whether there is overwhelming evidence independent from the challenged evidence such that there is no probability that, but for counsel's errors, there would have been a different outcome. Although recounting the evidence, as we have just done above, looks similar to the analysis in the sufficiency context, the analysis is different. We conclude that, unlike the cases upon which Washington relies for support, there is overwhelming and independent evidence of his guilt in the present case. Consequently, we agree with the post-conviction court that Washington has not demonstrated prejudice. Thus, we affirm.

Conclusion

[27] The trial court correctly denied Washington's petition for post-conviction relief in which he alleged ineffective assistance of trial counsel. There was overwhelming independent evidence of his guilt such that he has not demonstrated prejudice. Thus, we affirm.

[28] Affirmed.

FOOTNOTES

1.   Washington also raised ineffective assistance of appellate counsel claims in his petition for post-conviction relief. But he does not pursue those arguments on appeal from the post-conviction court's order.

Baker, Senior Judge.

Tavitas, C. J., and Scheele, J., concur