OPINION

BROWN, Judge.

Pursuant to an order from the post-conviction court, Judge Grant W. Hawkins presiding, Christopher Montgomery filed this "new direct appeal on his convictions for Count I, Murder, and Count III, Neglect of a Dependent," which the post-conviction court "limited to issues related to the introduction of 404(b) evidence and sufficiency consistent with [the] court's findings." Appellant's Appendix at 443. We first address an issue sua sponte, which is whether the post-conviction court erred when, following a determination that Montgomery received ineffective assistance of appellate counsel, it ordered that Montgomery be granted a second direct appeal. Following this discussion, we address the two issues raised by Montgomery, which we revise and restate as:

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The relevant facts as discussed in Montgomery's initial direct appeal follow:

Montgomery v. State, No. 49A02-0804-CR-343, slip op. at 2-4, 2008 WL 5062780 (Ind.Ct.App. Dec. 2, 2008), trans. denied.

On March 31, 2007, Detective Bill Rogers and Detective Kennedy interviewed Montgomery regarding Elijah's death in which Montgomery initially denied any wrong doing. Later in the interview, Montgomery began talking about the date in question and stated that "he had noticed that Elijah was sucking his thumb and had continued to do so after he had told him not to, and that he had placed Elijah face first into a corner for upwards of four hours." Transcript at 219. Montgomery stated that between 2:00 and 3:00 a.m., after putting Elijah to bed he noticed that Elijah continued to suck his thumb even in his sleep, and he "continually woke Elijah to pull his thumb out of his mouth and to scold him...." Id. at 220. He stated that Courtney was home when this occurred.

He told the Detectives that Elijah continued to suck his thumb, which angered him, that he woke Elijah and placed him face first in a corner for about an hour to an hour and a half, and that Elijah became "fidgety" and he called Elijah to his bed. Id. at 221. Montgomery stated that Elijah did not move as quickly as he would have liked, and when Elijah did finally come he "frogged" Elijah twice in the chest. Id. Montgomery stated that afterward, he "picked Elijah up and dropped him." Id. at 222. Montgomery first indicated that he dropped Elijah from a height of "just above his knees," but after Detective Kennedy told him that the injuries did not match what Montgomery was describing, Montgomery gave two other explanations in which both the height and the manner in which Elijah was thrown were changed. Id. In Montgomery's second explanation, he demonstrated that he held Elijah from a "mid torso" height and let go, but in his third explanation he demonstrated that he picked Elijah up to "his head level and tossed." Id. at 225.

On April 5, 2007, the State charged Montgomery with, among other counts, murder, two counts of neglect of a dependent as class A felonies, and neglect of a dependent as a class C felony.1 On February 20, 2008, Montgomery filed, as amended, a Notice to the Court of Intent to use 404(b) Evidence regarding evidence of a pattern of abuse engaged in by Elijah's mother, Courtney, against Elijah, which he stated was "relevant and admissible as evidence of [her] guilt, motive, identity, bias and interest." Appellant's Appendix at 226. That same day, the trial court, Judge Robert R. Altice presiding, held a hearing on the issue and ultimately ruled that although some of the evidence was admissible, including evidence that Courtney had battered Elijah a week prior to his death and that Elijah had a cut/bruise on his forehead at the time of his death, it also ruled that most of the proffered evidence was not admissible based on Ind. Evidence Rules 401, 403, 404(b), and 801. The trial court also noted at the end of the hearing that its rulings were preliminary and subject to change as the evidence was admitted at trial.

On February 25, 2008, the court commenced a jury trial, and on February 26, 2008, the jury found Montgomery guilty as charged. The court entered judgment of conviction on the murder count and set a sentencing hearing date. On March 12, 2008, the court held a sentencing hearing and entered judgment of conviction on two counts of neglect of a dependent, including under Count III for failing to seek immediate medical help after Elijah sustained his head injury, and under Count VI as a class C felony for making Elijah stand in the corner in the middle of the night. Montgomery, slip op. at 4. The court reduced the conviction under Count III to a class B felony based upon double jeopardy concerns. The court sentenced him to fifty-five years for murder, which was to run concurrent with a four-year sentence on Count VI. Id. On Count III, the court sentenced Montgomery to ten years to be served consecutive to the other counts. Appellant's Appendix at 44-45. Thus, Montgomery was sentenced to an aggregate term of sixty-five years.2

Montgomery brought a direct appeal challenging the sufficiency of the evidence of both the murder and the class C felony neglect of a dependent convictions, and on December 2, 2008, this court affirmed his murder conviction and reversed the class C felony neglect of a dependent conviction. Montgomery, slip op. at 1, 9. His aggregate sentence remained unchanged, however.

Montgomery filed a petition for post-conviction relief, and the post-conviction court held hearings on his petition on September 19, 2012, and October 31, 2012. On October 12, 2013, the post-conviction court issued its "Findings of Fact and Conclusions of Law Denying Post-Conviction Relief" (the "Post-Conviction Order") in which it granted in part and denied in part the relief sought by Montgomery. Appellant's Appendix at 417. The Post-Conviction Order stated in relevant part:

The overall performance of appellate counsel was deficient and prejudiced the defendant.

Id. at 436-438, 442-443.

On October 22, 2013, Montgomery filed his notice of appeal under Cause No. 49A02-1310-PC-884 ("Cause No. 884"). The notice of appeal stated the following regarding the appealed order: "State of Indiana v. Christopher M. Montgomery, Order for Post-Conviction Relief Granting New Direct Appeal." On November 5, 2013, the State filed a notice of appeal under the same cause number. On December 17, 2013, this court issued an order assigning a new "CR" cause number to Montgomery's appeal, later assigned as Cause No. 49A02-1312-CR-1039 ("Cause No. 1039"), while allowing the State's appeal to continue under Cause No. 884. The order also stayed Montgomery's appeal pending the completion of the State's appeal. On January 13, 2014, the State filed a Motion to Dismiss the Post-Conviction appeal, which this court granted on February 3, 2014. On February 27, 2014, this court issued an order lifting the stay and directing the record from the underlying jury trial proceedings be transferred to Cause No. 1039.

DISCUSSION

Before addressing the issues raised by Montgomery, we discuss the propriety of the post-conviction court's order that Montgomery be granted a second direct appeal as a result of its determination that he received ineffective assistance of appellate counsel. To the extent that this appeal is rooted in underlying post-conviction proceedings, we observe that such proceedings are "quasi-civil" in nature and "create[] a narrow remedy for subsequent collateral challenges to convictions, which must be based on grounds enumerated in the post-conviction rules." Lambert v. State, 743 N.E.2d 719, 725-726 (Ind. 2001) (quoting Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000) (citations omitted), reh'g denied, cert. denied, 531 U.S. 1128, 121 S.Ct. 886, 148 L.Ed.2d 793 (2001)). Also, the Indiana Supreme Court has declared repeatedly that "[t]he post-conviction procedures do not provide a petitioner with a `super-appeal' or opportunity to consider freestanding claims that the original trial court committed error. Such claims are available only on direct appeal." Id. at 726 (quoting Williams, 724 N.E.2d at 1076).

Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), reh'g denied), reh'g denied, cert. denied, 534 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001). We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel. Williams, 724 N.E.2d at 1078. A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824.

Also, ineffective assistance of appellate counsel claims fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-195 (Ind.1997) (citing Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. VA. L.REV. 1, 21-22 (1994)), reh'g denied, cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). Here, the post-conviction court concluded that Montgomery received ineffective assistance of appellate counsel based upon the second category when counsel failed to raise the issue of the trial court's decision to exclude certain evidence pursuant to Ind. Evidence Rule 404(b). The Indiana Supreme Court has observed regarding this class of ineffective assistance claims that "[a]lthough the convict in this instance received appellate review of at least some issues, the procedural prejudice from this type of error can still be formidable." Bieghler, 690 N.E.2d at 193. The Court went on to observe that "[i]neffectiveness is very rarely found in these cases" because "the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel," and it noted that "reviewing courts should be particularly deferential to counsel's strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable." Id. at 193-194. The Court directed that "[i]n analyzing this sort of case" the reviewing court, "under its performance analysis, first looks to see whether the unraised issues were significant and obvious upon the face of the record," and that "[i]f so, that court then compares these unraised obvious issues to those raised by appellate counsel, finding deficient performance only when ignored issues are clearly stronger than those presented."3 Id. at 194 (quotations omitted). The Court noted that "the reviewing court should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy," and it "should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made." Id.

Where the reviewing court on post-conviction determines that ineffective assistance of appellate counsel was rendered on direct appeal regarding a defendant's conviction, the proper remedy is to vacate the conviction and sentence imposed thereon. See, e.g., Henley v. State, 881 N.E.2d 639, 653 (Ind.2008) (holding that the defendant received ineffective assistance of appellate counsel regarding a claim of insufficient evidence to support an attempted murder conviction, reversing the post-conviction court on that issue, and remanding with instructions to vacate the conviction and the sentence imposed thereon). We note that, unlike cases where a conviction is vacated for insufficiency of the evidence and retrial is precluded based upon double jeopardy principles, here Montgomery was found to have received ineffective assistance of appellate counsel with regard to an evidentiary issue, and accordingly Montgomery is subject to retrial.

Indeed, this case is not unlike Gray v. State, 841 N.E.2d 1210 (Ind.Ct.App.2006), trans. denied, in which we noted that when the reviewing court on post-conviction determines that ineffective assistance of appellate counsel was rendered on direct appeal regarding a defendant's conviction, the proper remedy is to vacate the conviction and sentence imposed thereon. In Gray, defendant Gray argued that "his appellate counsel rendered deficient performance when she failed to raise the denial of the motion to sever a charge of unlawful possession of a firearm by a [serious violent felon ("SVF")] from the charges of murder, attempted murder, and robbery," noting that his appellate counsel "erroneously concluded that the issue was not preserved." 841 N.E.2d at 1213-1214. Gray noted that trial counsel, prior to voir dire, "moved to sever the possession by a SVF count from the four other counts, noting that the court had discretion to do so where concerns of fairness and undue prejudice arise," that trial counsel "was concerned about the ability of a defendant to receive a fair trial on the murder and attempted murder charges if the jury was informed that the defendant is a `serious violent felon,'" and that following the denial of trial counsel's motion to sever and Gray's subsequent conviction, trial counsel wrote on the Pre-Appeal Form "under `potential issues for appeal' only the following: `Gray was also charged with unlawful possession of a firearm by a serious violent felon. The court denied request for severance and to bifurcate so jury heard about previous felony convictions during murder trial.'" Id. at 1214-1216. Appellate counsel did not brief this issue and instead raised two issues and challenged a sentencing enhancement and the sufficiency of evidence as to Gray's attempted murder conviction. Id. at 1216. This court affirmed Gray's conviction. Id.

Following the denial of Gray's post-conviction petition, this court opined that "neither issue raised in Gray's direct appeal was particularly strong or groundbreaking" and that "[c]onversely, the issue of severance/bifurcation of an SVF count from other counts was truly undecided during the time of Gray's trial and appeal." Id. at 1217. We noted that "[a]lthough trial counsel preserved the severance/bifurcation issue, appellate counsel failed to raise the issue. She failed to do so despite the Pre-Appeal Form's clear directive, without having reviewed the relevant portion of the transcript, ... [and] chose instead two issues with `little chance of success.'" Id. at 1218 (quoting Fisher v. State, 810 N.E.2d 674, 677 (Ind.2004)). We found that performance was accordingly deficient. Id. at 1218-1219. Similarly, we found that prejudice was present, noting that we did not believe "that the evidence presented against Gray was `very strong'" and that "rather than being presented with overwhelming evidence that Gray had committed the charged violent crimes, the jury had to make some serious credibility determinations" and, in doing so, "was informed that Gray was a SVF and was left to speculate as to which violent felony or felonies Gray had already committed." Id. at 1219-1220. We found that "[c]onsequently, we can easily envision the jury's determinations being tainted by the references to Gray as a SVF" and that "had Gray's appellate counsel raised the severance/bifurcation issue, it is reasonably probable that reversal would have ensued...." Id. at 1220. We reversed the denial of Gray's petition for post-conviction relief and remanded the case for a new trial. Id.

As noted above, in this instance the post-conviction court, although finding that Montgomery's appellate counsel was ineffective, did not vacate his conviction and remand to the trial court for a new trial. Perplexingly, it instead simply ordered that Montgomery be allowed to bring a second direct appeal and raise the issue previously unaddressed by his initial appellate counsel.4 Such a step is improper because when a post-conviction court makes a determination that ineffective assistance of appellate counsel has been rendered, it necessarily finds under the prejudice prong that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Regarding this standard, we note that when this court determines that such "reasonable probability sufficient to undermine confidence in the outcome" exists, it does not then order the issue to be briefed on a subsequent direct appeal. Rather, as demonstrated in Gray, the remedy is to vacate the defendant's conviction and, where proper, order a new trial. We do not believe that the remedy afforded a defendant who demonstrates that a reasonable probability exists is changed where the post-conviction court, rather than a court on appeal, determines that a defendant received ineffective assistance of appellate counsel, because the relevant inquiry is the same. Accordingly, barring an appeal by the State of the Post-Conviction Order, there would be no need for this court to effectively re-analyze this question.

The post-conviction court erred when it ordered that Montgomery be allowed to bring a second direct appeal and brief an issue which, due to what it determined to be ineffective assistance of appellate counsel, had not been briefed in his initial appeal. Under these circumstances, however, we find the post-conviction court's error did not prejudice Montgomery's substantial rights because, for the reasons discussed below, we find that the trial court did not abuse its discretion when it excluded certain evidence. Further, we prefer to decide issues on the merits. See, e.g., Shoultz v. State, 995 N.E.2d 647, 659 (Ind.Ct.App.2013) (noting that "[w]hile we encourage practitioners and others appearing before this Court to follow the precise instructions of the Appellate Rules rather than simply the `spirit' of the Rules, we also prefer to decide cases and issues on the merits," and addressing the merits of the defendant's appeal), trans. denied. Additionally, the State has not moved to dismiss this appeal, and in fact on January 13, 2014 the State moved to dismiss its appeal of the Post-Conviction Order, which this court granted on February 3, 2014. The State's decision to dismiss its appeal allowed Montgomery's second direct appeal to proceed, which had been stayed pending the State's appeal of the Post-Conviction Order. Accordingly, we will address the issues raised. See Collins v. State, 873 N.E.2d 149, 157 (Ind. Ct.App.2007) (noting that "[t]his court will disregard technical errors or defects which did not prejudice the substantial rights of a defendant" (quoting Brown v. State, 245 Ind. 604, 609, 201 N.E.2d 281, 283-284 (1964) (citing Wright v. State, 237 Ind. 593, 147 N.E.2d 551 (1958)))), trans. denied.

I.

The first issue is whether the trial court abused its discretion by excluding certain evidence. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind. 2000). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances presented. Id. "Errors in the admission or exclusion of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party." Fleener v. State, 656 N.E.2d 1140, 1141 (Ind.1995) (citations omitted). In other words, we will find an error in the exclusion of evidence harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the defendant's substantial rights. Williams v. State, 714 N.E.2d 644, 652 (Ind.1999). cert. denied, 528 U.S. 1170, 120 S.Ct. 1195, 145 L.Ed.2d 1099 (2000).

Montgomery argues that he is entitled to present evidence that another person committed the crime for which he is charged and that the court was not justified in its decision to exclude "the evidence of a pattern of abuse by Courtney in this case." Appellant's Brief at 16. In his brief, Montgomery summarizes the evidence presented at the hearing on February 20, 2008, as follows:

Id. at 11-15 (footnote omitted).

In sum, with the exception of the proffered testimony of Clamenta Twyman, Montgomery's mother, which the court excluded as hearsay, the court's decision to exclude each of the remaining pieces of proffered evidence was based at least in part on relevance. That is, the court ruled based upon Ind. Evidence Rule 401 that the proffered testimony was not relevant. Ind. Evidence Rule 401 provides that "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Here, the bases for the court's rulings were either that such evidence was too remote in time or was offered to establish a pattern of abuse which was not the theory of the State's case for how Elijah died.

In arguing that the trial court abused its discretion when it ruled to exclude the evidence discussed above, Montgomery directs our attention to the Indiana Supreme Court's decision in Rohr v. State, 866 N.E.2d 242 (Ind.2007), reh'g denied. In Rohr, five-year-old Samuel Moore died four days after being taken to the hospital by Defendant Rohr and Samuel's mother Donna Moore, with whom Rohr had been living for about two months. 866 N.E.2d at 243-244. Rohr was charged with murder as a result of Samuel's death, and at trial the State presented evidence that Samuel had sustained blunt force head trauma, a severe brain injury, and bruising on the back, front, and inside of his thighs, his left elbow, his groin area, his chin, his waist, both sides of his bottom, his back, and his penis and scrotum, which were also swollen. Id. at 244. The State's evidence demonstrated that both the defendant and Moore had engaged in regular corporal punishment of Samuel and indicated that Moore had previously been investigated by the Department of Job and Family Services in Belmont County, Ohio, for physical harm to Samuel. Id. Prior to trial, the court granted a motion to exclude filed by the State prohibiting Rohr from calling and presenting the testimony of two witnesses, Roseanne Palmer and Melissa Scott. Id. at 245. Rohr was found guilty of murder and sentenced to life without parole. Id. at 244.

On appeal, the Court addressed what it determined to be the dispositive issue of whether Rohr was denied a fair trial when the court excluded the testimony of Palmer and Scott. The Court began its analysis by discussing the circumstances leading to the trial court's ruling as follows:

Id. at 244-245.

The Court reversed the trial court's ruling on the motion to exclude and remanded for a new trial. Id. at 249. The Court observed that trial courts have discretion to exclude belatedly disclosed witnesses "when there is evidence of bad faith on the part of counsel or a showing of substantial prejudice to the State." Id. at 245 (quoting Williams, 714 N.E.2d at 651). It noted that, "[s]ignificantly," the State in this case never asserted that the defense acted in bad faith and that "[i]f the four days before trial were truly insufficient for reasonable investigation by the State, a short continuance would have been the appropriate remedy." Id. at 246. The Court found the State knew of the challenged witnesses at some point before June 30th when it disclosed their names to the defense and that the record did not suggest that the defense had prior knowledge of them. Id. It further found that "[t]he potential importance of the witnesses' testimony to the defense may be inferred from the State's efforts to exclude their testimony," noting specifically that the State filed a motion in limine seeking to prohibit the introduction of evidence related to Donna Moore's alleged abuse of Samuel in 2002 which contained "entries to the effect that Melissa Scott and Roseanna Palmer had witnessed Donna Moore's abusive treatment of Samuel since he was six months old" and that:

Id.

The Court further noted that such errors are subject to harmless error analysis and that the State asserted harmless error because "evidence to be provided by the excluded witnesses was placed before the jury through Moore's own testimony and the redacted version of the investigation report made by the authorities in Ohio." Id. at 246-247 (internal quotations omitted). Rohr argued that Moore's testimony acknowledged the allegations but "did not actually admit to the incidents for which she was being investigated in Ohio," and indeed that she denied the conduct to which Scott and Palmer would have testified to witnessing. Id. at 247. The State at trial "presented considerable evidence of Samuel's extensive injuries, most of which were not directly involved in causing his death," including injuries to Samuel's "thighs, his left elbow, his groin area, his chin, his waist, both sides of his bottom, his back, and his penis and scrotum." Id. (emphasis added). The Court held that "[i]n light of the State's evidence, it was proper for the defense to seek to support its claim that Samuel's extensive injuries, purportedly the result of a pattern of child abuse, were caused by Donna Moore, not the defendant," and that accordingly such error was not harmless. Id. (emphasis added).

The State argues that Rohr is distinguishable because evidence was presented in that case of a pattern of abuse and that we should follow this court's opinion in Lush v. State, 783 N.E.2d 1191 (Ind.Ct. App.2003), and affirm the trial court. In Lush, Defendant Lush was at home in Columbus, Indiana, with his two-year old son and his two-year old stepdaughter, H.R., while H.R.'s mother Angela was working. 783 N.E.2d at 1193. H.R. appeared fine when Angela left for work, as well as when she returned home for lunch at approximately 11:00 a.m. Id. Lush and the children drove Angela back to work at 11:15 a.m., and then he and the children returned home. Id. Sometime after 12:30 p.m., a neighbor observed Lush leaving the house with H.R. in his arms and moving at a normal pace. Id. Lush called Angela and asked her to meet him in front of her work. Id. A coworker of Angela's was sitting outside from about 1:30 p.m. to 1:45 p.m., and during that time she observed Lush drive up to the building at a fairly normal speed, that Angela spoke with Lush at the car, and that then Angela hurried back inside and ran back out to the car after a few minutes. Id. at 1193-1194. While Angela was inside, the coworker also observed Lush shake H.R., who was in his lap, as if to wake her. Id. at 1194. Angela and Lush then left in the car fairly quickly. Id.

H.R. arrived at the hospital at approximately 2:00 p.m. and was unconscious and not breathing. Id. She was flown to Riley Hospital for surgery to relieve the pressure on her brain from an acute subdural hematoma that was collecting blood and was rapidly herniating her brain stem. Id. Doctors discovered that H.R. had sustained linear bruising on her legs and her back, that her eyes were swollen and she had retinal hemorrhaging not consistent with an accidental injury, and that she also exhibited substantial bruising on her face and neck. Id. The doctors noted that she had fading bruises on her arms and chest, but the coloration of the other bruises indicated that they had been formed recently. Id. The doctors noted that the acute subdural hematoma likely was inflicted by an angular momentum that rendered H.R. immediately unconscious. Id. They noted that "[t]hose injuries appeared to have been inflicted within a few hours prior to H.R.'s arrival at the emergency room in Columbus, and a maximum of six hours prior to her arrival there." Id. H.R. was in a medically induced coma for two weeks and sustained permanent damage to her brain. Id. Lush was found guilty by jury trial of aggravated battery and neglect of a dependent, both as class B felonies. Id.

On appeal, Lush argued that the court erred by excluding the testimony of two witnesses, Patricia Goodlow and Shauna Smith, regarding Angela's treatment of H.R., as well as Angela's son's behavior, as not being relevant. Id. This court affirmed the rulings of the trial court, noting first that Smith's testimony related to Angela's son's behavior was irrelevant because her son "was not present at the house at the time that H.R. received her life-threatening injuries. Therefore, any testimony concerning the son's behavior was irrelevant to the charges, aggravated battery and neglect of a dependent, against [Lush]." Id. at 1195. The court next addressed certain testimony Lush attempted to elicit from Smith "that Angela frequently picked up H.R. by the arms" and held that such "testimony is irrelevant to the charges, aggravated battery and neglect of a dependent, against [Lush]. The bruising on H.R.'s arms was not the life-threatening injury that was the subject of the aggravated battery charge against [him]." Id. Last, the court addressed testimony Lush attempted to elicit from Goodlow "that she did not approve of Angela's parenting skills [] and had problems with Angela's care of H.R. before Defendant became a member of the household," and it again found such testimony to be irrelevant "because it had no relevance to the instant charges against [Lush]." Id.

Montgomery argues that the Lush case is distinguishable because in Lush the child's mother was not home and thus could not have caused the deadly injuries to the child herself. We find, however, that under these circumstances such a distinction is immaterial. Here, in making its evidentiary rulings five days before the jury trial, the trial court did so based upon what it understood to be the State's theory of the case that Elijah's death was caused by the single injury of being thrown to the ground, but it recognized that its rulings were "preliminary" and "certainly subject to change as [it] listen[ed] to the evidence...." Transcript at 552. As noted above, the evidence presented at trial included testimony by Detectives Rogers and Kennedy in which they recounted an interview they conducted with Montgomery and testified that Montgomery initially denied any wrongdoing. They testified that later in the interview, Montgomery began talking about the date in question and eventually admitted that he "picked Elijah up and dropped him" to punish Elijah. Id. at 222. Montgomery first indicated that he dropped Elijah from a height of "just above his knees," but after Detective Kennedy told him that the injuries did not match what Montgomery was describing, Montgomery gave two other explanations in which both the height and the manner in which Elijah was thrown were changed. Id. In Montgomery's second explanation, he demonstrated that he held Elijah from a "mid torso" height and let go, but in his third explanation he demonstrated that he picked Elijah up to "his head level and tossed." Id. at 225. Further, Montgomery does not point to the record demonstrating that he ever attempted to admit any of the challenged evidence at the jury trial.

We find that, similar to the evidence excluded in Lush, the challenged evidence was properly excluded as not relevant because such evidence was in the nature of a pattern of abuse on the part of Courtney and was irrelevant to the charges against Montgomery. Indeed, the Rohr case, upon which Montgomery relies, is distinguishable on this very basis because in Rohr evidence of a pattern of abuse by the mother Donna Moore had been introduced by the State, which led the Indiana Supreme Court to hold specifically that "[i]n light of the State's evidence, it was proper for the defense to seek to support its claim that Samuel's extensive injuries, purportedly the result of a pattern of child abuse, were caused by Donna Moore, not the defendant," and that accordingly such error was not harmless. 866 N.E.2d at 247 (emphasis added).

Here, the trial court recognized that the sole issue at trial was who inflicted the blunt force trauma that killed Elijah and found that evidence of Courtney's pattern of abuse of Elijah was not admissible to show that she committed the offenses unless Montgomery could show that Elijah's death was caused by a pattern of abuse. He failed to do so, and indeed evidence was presented that he confessed to detectives that he threw Elijah to the ground in a manner consistent with the injury causing death. Montgomery did not attempt to admit evidence of Courtney's pattern of abuse following the pretrial hearing. Finally, to the extent the court excluded the testimony of Clamenta Twyman as hearsay, including that Twyman would have testified that Courtney told her that she was punishing Elijah by making him stand in a corner, we note that Montgomery does not specifically challenge the court's ruling on that proffered testimony in his brief. We also find that such evidence was not relevant to determining who caused the fatal injury. We conclude that the court thoughtfully parsed the prospective evidence at the hearing on February 20, 2008, and that it did not abuse its discretion in excluding certain evidence.

II.

The next issue is whether Montgomery's conviction of neglect of a dependent as a class B felony violates double jeopardy principles.5 The Indiana Constitution provides that "[n]o person shall be put in jeopardy twice for the same offense." IND. CONST. art. 1, § 14. "Indiana's Double Jeopardy Clause ... prevent[s] the State from being able to proceed against a person twice for the same criminal transgression." Hopkins v. State, 759 N.E.2d 633, 639 (Ind.2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999)). The Indiana Supreme Court has held that "two or more offenses are the `same offense' in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Richardson, 717 N.E.2d at 49.

In addition, Indiana courts "have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson." Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring))). "Even where no constitutional violation has occurred, multiple convictions may nevertheless violate the `rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.'" Vandergriff v. State, 812 N.E.2d 1084, 1088 (Ind.Ct.App.2004) (quoting Pierce, 761 N.E.2d at 830), trans. denied. As enumerated in Justice Sullivan's concurrence in Richardson and endorsed by the Indiana Supreme Court in Guyton, five additional categories of double jeopardy exist: (1) conviction and punishment for a crime which is a lesser-included offense of another crime for which the defendant has been convicted and punished; (2) conviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished; (3) conviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished; (4) conviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished; and (5) conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the very same act as another crime for which the defendant has been convicted and punished. See Guyton, 771 N.E.2d at 1143; Richardson, 717 N.E.2d at 55-56 (Sullivan, J., concurring).

Montgomery argues that his conviction under Count III for neglect of a dependent as a class B felony must be reduced to a class D felony based upon the case of Strong v. State, 870 N.E.2d 442 (Ind.2007). In Strong, Defendant Strong was convicted for the murder of his girlfriend's three-year-old daughter, Taranova Glick, and neglect of a dependent resulting in the same child's death, as a class A felony. 870 N.E.2d at 442. He was sentenced to consecutive terms of sixty-five years for murder and fifty years for class A felony neglect. The Indiana Supreme Court observed on appeal that "[u]nder the rules of statutory construction and common law that constitute one aspect of Indiana's double jeopardy jurisprudence, where one conviction `is elevated to a class A felony based on the same bodily injury that forms the basis of [another] conviction, the two cannot stand.'" Id. at 443 (quoting Pierce, 761 N.E.2d at 830 (Ind. 2002)). The Court noted that the murder count charged Strong with knowingly killing Taranova and the neglect of a dependent resulting in death count "alleged that [Strong], who had care of three-year-old Taranova Glick as a dependent, knowingly placed her `in a situation endangering her life or health,' allowing her `to languish and suffer without medical treatment knowing she had been gravely injured, all of which resulted in the death of Taranova Glick.'" Id.

The State in Strong argued that any double jeopardy violation "may be adequately addressed by reducing the neglect count from a class A to a class B felony" because "the murder and neglect convictions `were based on two completely different sets of actions as the murder happened when [d]efendant placed his knee into Taranova's abdomen and the neglect happened thereafter when he did not seek medical attention.'" Id. The Court observed the relevant statute, Ind.Code § 35-46-1-4,6 and noted that "[t]he offense of neglect of a dependent, absent a resulting injury, is defined as a class D felony." Id. (citing Ind.Code § 35-46-1-4(a)). It further noted that this crime "is a class C felony when it `results in bodily injury' ... a class B felony when it `results in serious bodily injury,' and a class A felony when it `results in the death of a dependent who is less than fourteen (14) years of age.'" Id. (quoting Ind.Code §§ 35-46-1-4(b)(1)-4(b)(4)). Based upon this statutory language, the Court disagreed with the State's argument that reclassifying the neglect of a dependent conviction as a class B felony would alleviate the double jeopardy issue, stating that "[s]uch a recharacterization of the charges ... does not eliminate the fact that both charged offenses would still be based on the same bodily injury." Id. at 444. It specifically found that "[t]he injuries urged to support the `serious bodily injury' necessary for class B neglect are the same injuries, the same harm, that resulted in the child's death and are the basis of the murder charge." Id. The Court held that "[o]nly when deemed a class D offense, which does not include any element of bodily injury, does the conviction of neglect of a dependent satisfy the common law/statutory construction aspect of Indiana's double jeopardy jurisprudence," and it remanded "to the trial court to reduce the conviction for neglect of a dependent from a class A felony to a class D felony, for which the sentence shall be a term of three years, to be served consecutively to the sentence for murder." Id.

We find that the Court's reasoning in Strong applies with equal force to Montgomery's neglect of a dependent conviction. As in that case, Montgomery was found guilty by the jury of neglect of a dependent as a class A felony for causing the death of Elijah. The court, based on double jeopardy concerns, entered the conviction as a class B felony for failing to seek immediate medical help after Elijah sustained the head injury. However, that serious bodily injury was the same injury which led to Elijah's death. Thus, the court should have entered Montgomery's conviction on Count III as a class D felony, which applies to the crime of neglect of a dependent without any element of bodily injury. We therefore remand to the trial court with instructions to reduce Montgomery's conviction under Count III from a class B felony to a class D felony and to enter a sentence of three years to be served consecutive to Montgomery's murder sentence, for an aggregate sentence of fifty-eight years.

CONCLUSION

For the foregoing reasons, we affirm Montgomery's conviction for murder under Count I, reverse his conviction for neglect of a dependent as a class B felony under Count III, and remand with instructions to enter a conviction under Count III for neglect of a dependent as a class D felony and to sentence him to three years thereon, to be served consecutive to his conviction for murder under Count I.

Affirmed in part, reversed in part, and remanded.

BARNES, J., and BRADFORD, J., concur.