Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
JONATHAN O. CHENOWETH CYNTHIA L. PLOUGHE
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
May 09 2013, 9:15 am
IN THE
COURT OF APPEALS OF INDIANA
JAMES Q. BRYANT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1211-PC-869
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
The Honorable Amy J. Barbar, Magistrate
Cause No. 49G02-0802-PC-44915
May 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
James Q. Bryant appeals the post-conviction court’s denial of his petition for post-
conviction relief. Bryant raises two issues on appeal: 1) whether he was denied the
effective assistance of his trial counsel; and 2) whether he was denied the effective
assistance of his appellate counsel. Concluding that Bryant was not denied the effective
assistance of trial or appellate counsel, we affirm.
Facts and Procedural History
On February 8, 2008, Ashley Everman was at home in the “apartment she shared
with her sister, cousin, and niece when she heard a knock at the door. . . . Everman
cracked open the door but then, upon seeing several people congregated outside,
attempted to shut it. Everman was knocked down as the door was shoved open.” Bryant
v. State, 911 N.E.2d 735 at *1, No. 49A05-0901-CR-17 (Ind. Ct. App., Aug. 21, 2009),
trans. denied. Bryant, whom Everman had recently met while visiting a mutual friend,
and two other men entered the apartment. Id. The three men proceeded to take money
and other items, threaten the occupants, strike Everman with a gun twice, and then tie up
Everman and another occupant before they left. Id. All three men were apprehended in
the neighborhood shortly thereafter, and identified by Everman. Id.
On February 25, 2008, Bryant was charged with burglary, carrying a handgun
without a license, pointing a firearm, four counts of criminal confinement, battery,
robbery, intimidation, and two counts of theft. Following a joint trial with the two other
men, Bryant was found guilty of all charges, and was sentenced to an aggregate of thirty-
six years. Bryant then filed a direct appeal, challenging the sufficiency of the evidence
2
underlying his intimidation and burglary convictions. We affirmed his convictions. Id. at
*3.
Bryant filed a pro se petition for post-conviction relief on April 19, 2010, and then
an amended petition via counsel on June 27, 2012. The post-conviction court conducted
a hearing on the petition on July 18, 2012, and subsequently entered findings of fact and
conclusions of law, and denied Bryant’s petition. This appeal followed. Additional facts
will be supplied as necessary.
Discussion and Decision
I. Standard of Review
To prevail on appeal from the denial of post-conviction relief, the petitioner must
show that the evidence is without conflict and leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. Thacker v. State, 715
N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied. A post-conviction court’s
findings and judgment will be reversed only upon a showing of clear error, which is error
that leaves us with a definite and firm conviction that a mistake has been made.
Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-
conviction court’s findings of fact unless they are clearly erroneous, but we do not defer
to the post-conviction court’s conclusions of law. Id. We examine only the probative
evidence and reasonable inferences that support the post-conviction court’s determination
and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.
State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).
We review claims of ineffective assistance of counsel under the two prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d
3
188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same standard applies to
claims of ineffective assistance of trial or appellate counsel. Id. To prevail on a claim of
ineffective assistance of counsel, the petitioner must show that his counsel’s performance
was deficient and that the lack of reasonable representation prejudiced him. Randolph v.
State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first
prong, the petitioner must show that counsel’s performance was deficient in that
counsel’s representation fell below an objective standard of reasonableness and that
counsel committed errors so serious that petitioner did not have the “counsel” guaranteed
by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show
prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Pruitt v. State, 903
N.E.2d 899, 906 (Ind. 2009).
Under this standard, judicial scrutiny of counsel’s performance must be highly
deferential, and there is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Bieghler, 690 N.E.2d at 192 (citing
Strickland, 466 U.S. at 689). Counsel is afforded considerable discretion in choosing
strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at
1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective. Id. Additionally, ineffective assistance
is very rarely found in cases where a defendant asserts that appellate counsel failed to
raise an issue on direct appeal. Reed, 856 N.E.2d at 1196. One reason for this is that the
decision of what issues to raise is one of the most important strategic decisions to be
4
made by appellate counsel. Id. To evaluate the performance prong when counsel waived
issues upon appeal, we apply the following test: (1) whether the unraised issues are
significant and obvious from the face of the record and cannot be explained by any
reasonable strategy, and (2) whether the unraised issues are “clearly stronger” than the
raised issues. Kendall v. State, 886 N.E.2d 48, 53 (Ind. Ct. App. 2008), trans. denied.
Finally, we note that the two prongs of the Strickland test are separate and
independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, we may determine the prejudice prong first
without inquiring into whether counsel’s performance was adequate. Thacker, 715
N.E.2d at 1284.
II. Effective Assistance of Trial Counsel
Bryant argues that he was denied the effective assistance of his trial counsel when
his counsel failed to object to jury instruction number twenty-four, which read:
The term “breaking” is defined by law as follows:
A “breaking” is an illegal and unconsented entry, no matter how
slight or minimal. There does not have to be rupturing or breaking in order
to establish that a breaking occurred. It is enough to show that even the
slightest force was used to gain entry. Even the opening of an unlocked
door is sufficient to constitute a “breaking.”
An “entering” occurs when a person puts himself inside a structure.
Brief of Appellee at 9. Bryant’s concern is with the sentence, “[e]ven the opening of an
unlocked door is sufficient to constitute a ‘breaking,’” with its use of the word “is.”
Bryant argues that this sentence gave rise to a mandatory presumption such that, if the
jury found that Bryant had opened the door to Everman’s apartment, then the breaking
element of burglary was met. We disagree.
5
“A mandatory presumption instructs the jury that it must infer the presumed fact if
the State proves certain predicate facts. A permissive inference suggests to the jury a
possible conclusion to be drawn if the State proves predicate facts, but does not require
the jury to draw that conclusion.” Higgins v. State, 783 N.E.2d 1180, 1185 (Ind. Ct. App.
2003), trans. denied. When we examine jury instructions, we consider the instructions as
a whole and in reference to each other, and will only find reversible error if the
instructions as a whole mislead the jury as to the law in the case. White v. State, 846
N.E.2d 1026, 1032-33 (Ind. Ct. App. 2006), trans. denied.
Here, Bryant invites us to follow State v. Jones, 805 N.E.2d 469, 473 (Ind. Ct.
App. 2004), opinion aff’d in relevant part, 835 N.E.2d 1002 (Ind. 2005)—in which we
found an instruction regarding the breaking element created a mandatory presumption—
and to ignore Higgins and White—in which we found instructions regarding the breaking
element to create permissive inferences—because the instructions in Higgins and White
were “wrongly held” to be permissive inferences. Brief of Petitioner-Appellant at 14.
However, both Higgins and White are more on-point for the case at hand, as both of those
cases evaluated instructions in which the word “is” was at issue, and in both cases the
jury was also instructed as to their right to determine the law and the facts, as is true here.
As in Higgins and White, we decline here to hold that “that the mere inclusion of the
word ‘is’ in an instruction creates a mandatory presumption.” White, 846 N.E.2d at
1033; Higgins, 783 N.E.2d at 1186. While we agree that the better practice would have
been to word the instruction with something along the lines of “may be enough” rather
than “is,” we do not believe that, in the context of the jury instructions as a whole, the
wording here created a mandatory presumption.
6
Bryant’s particular concern here is that, if the instruction created a mandatory
presumption, the jury would not be free to consider the affirmative defense of consent
regarding the breaking element. Bryant admits that in a “run-of-the-mill burglary or
residential entry case—that is, a case in which the defendant denies that he applied any
physical force against the structure—a mandatory presumption . . . is harmless.” Br. of
Pet.-Appellant at 15. In this case though, it appears that evidence was presented at trial
that left open the possibility that Everman initially consented to Bryant’s entry into the
apartment, and thus the timing of her withdrawal of that consent would be relevant to
whether Bryant committed a “breaking.” Further, in this case Bryant admitted that the
other elements of burglary were met, and so the element of breaking was the focus of his
case.
Given the instructions as a whole, we believe the jury was still free to consider
consent as it related to the element of breaking. Instruction twenty-four itself references
consent when it says that breaking “is an illegal and unconsented entry.” Br. of Appellee
at 9. Bryant argues that the jury could have misunderstood that portion of the instruction
and confused consent of the homeowner with authorization by the State, and thus
interpreted it to mean that the State had to prove lack of consent (rather than having to
disprove consent once it was raised as an affirmative defense). However, Bryant admits
that there is “little practical difference between proving an element and disproving an
affirmative defense”— particularly, we would add, in a lay person’s mind. Br. of Pet.-
Appellant at 21.
Finally, even if the instruction did create a mandatory presumption, the jury here
was also instructed that it is the judge of the law and the facts; this additional instruction
7
would essentially cure any defect caused by the mandatory presumption. See White, 846
N.E.2d at 1033; Higgins, 783 N.E.2d at 1187; see also Ind. Const. art 1, § 19.
We conclude that the instruction at issue created only a permissive inference and
not a mandatory presumption. In light of the instructions as a whole, the jury was free to
consider the affirmative defense of consent. Bryant’s trial counsel was not deficient in
failing to object to the instruction, and because any objection to the instructions would
likely have been overruled, Bryant was not prejudiced by counsel’s failure to object. We
are not left with a firm conviction that a mistake has been made by the post-conviction
court in determining that Bryant’s trial counsel provided effective assistance.
III. Effective Assistance of Appellate Counsel
Bryant next argues that he was denied the effective assistance of his appellate
counsel when counsel failed to challenge instruction twenty-four on direct appeal.
Because trial counsel did not object to instruction twenty-four when it was given, it
would have been waived as an issue on appeal unless appellate counsel demonstrated the
existence of fundamental error. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App.
2010), trans. denied. Fundamental error requires a showing of greater prejudice than
ordinary reversible error. Id. Because, as detailed above, we find that there was no
reversible error in this case, the bar of fundamental error certainly would not have been
met. The decision of what issues to raise is one of the most important strategic decisions
to be made by appellate counsel, and we cannot say that this issue was clearly stronger
than the issues that counsel chose to raise on appeal. We are not left with a firm
conviction that a mistake has been made by the post-conviction court in determining that
Bryant’s appellate counsel provided effective assistance.
8
Conclusion
Concluding that Bryant was not denied the effective assistance of either trial or
appellate counsel, we affirm the post-conviction court’s denial of his petition for post-
conviction relief.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.
9