FOR PUBLICATION
Jan 15 2015, 8:49 am
Jan 15 2015, 8:49 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAULA M. SAUER GREGORY F. ZOELLER
Danville, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID PAUL BROWN, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1405-CR-194
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Mark A. Smith, Judge
Cause No. 32D04-1210-FD-1063
January 15, 2015
OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
David Paul Brown appeals his conviction for Class D felony theft. He contends
that his trial counsel was ineffective for failing to object to a portion of his videotaped
interview with a detective as hearsay and for not tendering a jury instruction on criminal
conversion as a lesser-included offense of theft. Although defense counsel should have
requested an admonishment regarding the portion of the interview containing the
detective’s statements, we find no prejudice in light of the other evidence presented at trial.
In addition, we find that defense counsel was not ineffective for not tendering a jury
instruction on criminal conversion as a lesser-included offense of theft because counsel
employed a reasonable all-or-nothing trial strategy. We therefore affirm the trial court.
Facts and Procedural History
The facts most favorable to the verdict are as follows. Chad Miller and his wife
owned a home and approximately five acres of land in Brownsburg, Indiana. The property
included an older barn and a newer pole barn that was built in 2009. In 2012 Chad placed
an advertisement to rent the property because he and his family were moving temporarily
to Florida.
Brown answered the ad in the summer of 2012 and went to look at the property.
Chad told Brown that the lease would include the home, the land, and only the older barn
because he and his family were going to store the things they were not taking with them to
Florida in the pole barn. Chad and Brown eventually agreed on the terms and signed a
lease in late June. According to the lease, Brown and his family took possession on July
25, 2012; rent was $1500/month with a security deposit of $1500. Notably, Chad did not
2
give Brown permission or a key to access the pole barn. Chad told Brown that he had not
gotten around to cleaning out the old barn, but Brown could “do what [he] want[ed] with
that.” Tr. p. 194.
Chad flew back from Florida on August 20, 2012, to mow the grass. When he
returned, he noticed that the deadbolt to the pole barn was unlocked although it had been
locked when he left for Florida. Chad owned a hand truck that he could not locate. Brown
told Chad that Chad had left the hand truck outside and that Brown was going to fix it for
him. But Chad was certain that he did not leave it outside. At that point, Chad became
suspicious and thought that someone had been inside his pole barn. As a precaution, Chad
took pictures of his belongings in the pole barn as well as the hour meter on his very
expensive Kubota lawn mower. Chad returned to Florida on August 26.
Rent was due September 1, 2012. When Chad had not received rent from Brown
on September 5, Chad called him. Chad again called Brown on September 10 when he still
had not received rent. Both times, Brown had multiple excuses for why he had not paid
rent. When October 1 came and Brown still had not paid rent, Chad returned to Indiana to
start the eviction process. Chad called Brown when he arrived in Indiana. Brown
suggested that Chad should forgive September’s rent because Brown had done some work
on the house. Chad came to look at the house but said that because the work was not
authorized, Brown still had to pay September’s rent.
While Chad was at the house, he went to the pole barn to check his lawn mower.
He immediately noticed cigarette butts in the cup holder—Brown was a smoker—and three
extra hours on the hour meter when compared to the photograph he had taken on his
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previous trip to Indiana. Chad also noticed that some boxes were open that had been closed
before and that some boxes had been moved. Chad called the Hendricks County Sheriff’s
Department to make a report. At that time, Chad did not notice anything missing.
When Chad returned to the property two days later, he realized that his slot machine
was missing from the pole barn. Chad recalled that Brown’s wife, Elizabeth, had an antique
store in Broad Ripple, so he went to the store to see if his slot machine was there. Chad,
pretending to be a shopper, asked Elizabeth if she had a slot machine for sale. She said
yes, because her husband had come “across a . . . slot machine that some guy was trying to
scrap and so [he] offered him money for it and he bought it from him.” Id. at 175. Chad
continued to feign interest, and after Elizabeth showed him the slot machine, he took a
picture of it. The slot machine was damaged and missing the quarters from inside.
Elizabeth offered to sell the slot machine for $50.00. Id. at 177. Chad then showed
Elizabeth a picture of his son playing the same slot machine and said “this is my slot
machine.” Id. Elizabeth appeared shocked. Chad told her he would be evicting their
family and that he wanted his slot machine back. When Chad left, he took his slot machine
back to the pole barn and called the Sheriff’s Department.
Deputy Teresa Woods interviewed Brown in October 2012. Brown said the slot
machine was in the old barn and that he took it out in order to refurbish it and return it to
Chad. Id. at 227, 230. Detective Aaron Payne later interviewed Brown at the Sheriff’s
Department. The interview was videotaped. Brown said that the slot machine was in the
old barn and that he was “going to restore it [for Chad] as a gesture of goodwill.” Id. at
245.
4
The State charged Brown with Class D felony theft for the slot machine and alleged
that he was a habitual offender.1 At trial, the State admitted the videotaped interview of
Brown and Detective Payne (Exhibit 14). The interview was redacted to comply with the
trial court’s ruling on the State’s motion in limine.2 See Appellant’s App. p. 100. After
the State played the redacted videotape, it rested. The jury found Brown guilty of theft. In
the second phase of trial, the jury determined that Brown was a habitual offender. The trial
court sentenced Brown to 180 days in the Indiana Department in Correction, enhanced by
915 days for the habitual-offender finding, which was to be served at the Hendricks County
Work Release Center.
Brown now appeals.
Discussion and Decision
Brown contends that his trial counsel was ineffective. To allege a violation of the
Sixth Amendment right to effective assistance of counsel, a defendant must establish the
two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a
defendant must show that counsel’s performance was deficient. Id. at 687. This requires
a showing that counsel’s representation fell below an objective standard of reasonableness
and that counsel made errors so serious that counsel was not functioning as “counsel”
guaranteed to the defendant by the Sixth Amendment. Id. Even the finest, most
1
The State also charged Brown with Class D felony receiving stolen property regarding “a utility
dump style trailer.” Appellant’s App. p. 12. But because Brown was acquitted of this count, we do not
include any facts related to the trailer.
2
The State filed a motion in limine prohibiting the defense from mentioning an alleged battery that
Chad committed against Brown after he found out about the slot machine. The trial court granted the
motion in limine. See Tr. p. 34-41.
5
experienced criminal defense attorneys may not agree on the ideal strategy or most
effective way to represent a client; therefore, under this prong, we will assume that counsel
performed adequately and defer to counsel’s strategic and tactical decisions. Smith v. State,
765 N.E.2d 578, 585 (Ind. 2002), reh’g denied. Isolated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render representation
ineffective. Id.
Second, a defendant must show that the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. To establish prejudice, a defendant 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. at 694. A reasonable probability is one
that is sufficient to undermine confidence in the outcome. Id.
These prongs are “separate and independent inquiries,” and a petitioner’s “failure
to establish either prong will cause the claim to fail.” State v. Greene, 16 N.E.3d 416, 419
(Ind. 2014) (quotation omitted). In addition, because Brown alleges ineffective assistance
of counsel on direct appeal, he is foreclosed from raising it on post-conviction. See Woods
v. State, 701 N.E.2d 1208, 1220 (Ind. 1998), reh’g denied.
I. Videotaped Interview
First, Brown argues that his trial counsel was ineffective for failing to object to a
portion of his videotaped interview with Detective Payne. When the videotaped interview
was played for the jury at trial, it comprised ten pages in the trial transcript; the portion that
Brown now challenges consists of only one page:
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DETECTIVE PAYNE: As far as the slot machine goes you can’t take his
property at all; he didn’t give you permission to take that slot machine
anywhere to do anything with.
MR. BROWN: No, he didn’t.
DETECTIVE PAYNE: You just can’t do that; I don’t care if he had an old
rusty tractor sitting out back.
MR. BROWN: (Inaudible).
DETECTIVE PAYNE: You can’t take his property at all. He didn’t give you
permission to take that slot machine anywhere to do anything with.
MR. BROWN: No he didn’t.
DETECTIVE PAYNE: You just can’t do that. I don’t care if [he] had an old
rusty tractor sitting out back.
MR. BROWN: Well I wasn’t trying to move the tractor.
DETECTIVE PAYNE: It didn’t matter if you don’t have permission to take
that old rusty tractor or that slot machine anywhere or do anything with it.
You just can’t do it regardless of whether he rents the place or not; you just
can’t take his (inaudible).
MR. BROWN: Yeah, I mean, you know, when you put it like that, it is I, you
know, when I did it I figured that me and him were on a good relationship
that I could, you know, I could do that for him.
Tr. p. 300-01. Brown argues that Detective Payne’s statements are inadmissible hearsay
and that defense counsel should have requested a limiting instruction.3
3
Brown also argues that Detective Payne’s statements invaded the province of the jury under
Indiana Evidence Rule 704(b). See Appellant’s Br. p. 11 (“Detective Payne’s recorded statements left the
jury firmly convinced . . . that Brown had engaged in misconduct in taking [Chad’s] property without
permission.”). Evidence Rule 704(b) provides: “Witnesses may not testify to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified
truthfully; or legal conclusions.” Because Brown has consistently admitted taking Chad’s slot machine,
Detective Payne’s comments did not invade the province of the jury. And contrary to Brown’s arguments
on appeal, in the portion that Brown challenges Detective Payne did not opine that Brown was “a liar and
a thief.” See Appellant’s Reply Br. p. 3.
7
“‘Hearsay’ means a statement that: (1) is not made by the declarant while testifying
at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter
asserted.” Ind. Evidence Rule 801(c). Indiana Evidence Rule 801(d)(2)(A) provides that
statements made by a party opponent are not hearsay. Accordingly, Brown’s statements
are admissible as those of a party-opponent. As for Detective Payne’s statements, which
put Brown’s statements in context, they would have been admissible if defense counsel
would have simply requested a limiting instruction for the jury. See Strong v. State, 538
N.E.2d 924, 928 (Ind. 1989) (holding that the “statements by the police officer were not
inadmissible hearsay because they were not offered as proof of the facts asserted therein,”
and the “limited function of the police questions was explained to the jury at the time the
recording was played with [an] admonishment from the trial judge at the request of defense
counsel”).4
In those cases where an admonishment was not given to the jury, our Supreme Court
has held that even though the jury should have been advised that the police officer’s
statements were not evidence, the admission of the police officer’s statements can be
harmless in light of the other evidence presented at trial. See Lampkins v. State, 778 N.E.2d
4
The admonishment in Strong provided:
On the tape there are some statements made by Mr. Loy and by Detective Rhodes, the other
police officer, and I want to instruct you that what the police officers say in the course of
the interview, the police officers [sic] information, whatever they say is not evidence and
is not to be considered by you as evidence. But is to be considered only as questioning and
questions in order to elicit information to draw out information from Mrs. Strong. There
are certain things that the police officers say and representations that they make that may
or may not be true. They are not to be considered as evidence other than to bring out
information from Mrs. Strong. Okay.
538 N.E.2d at 928.
8
1248, 1251-52 (Ind. 2002) (finding error harmless because in a second interview, the
defendant confessed to shooting the victim twice in the back and testified as such at trial);
see also Wilkes v. State, 917 N.E.2d 675, 686 (Ind. 2009), reh’g denied. Accordingly, even
assuming that defense counsel was deficient for failing to request an admonishment, Brown
has failed to show that defense counsel’s deficient performance prejudiced him because we
find the error harmless in light of the other evidence presented at trial. Specifically, a
different officer, Deputy Woods, interviewed Brown in October 2012, and Brown told her
that the slot machine was in the old barn and that he took it out in order to refurbish it and
return it to Chad. But Chad testified at trial that the slot machine was in the locked pole
barn and that he did not give Brown permission to enter the pole barn, let alone to take his
slot machine out of the barn. In addition, Chad testified that he found the slot machine in
Brown’s wife’s antique store and she offered to sell it to him for $50.00. Thus, Brown has
failed to prove that his trial counsel was ineffective for failing to object to the limited
portion of his videotaped interview with Detective Payne and request an admonishment.
II. Jury Instruction
Next, Brown argues that his trial counsel was ineffective for not tendering a jury
instruction on Class A misdemeanor criminal conversion as a lesser-included offense of
Class D felony theft. A person who knowingly or intentionally exerts unauthorized control
over property of another person commits Class A misdemeanor criminal conversion. Ind.
Code Ann. § 35-43-4-3 (West 2012). Class D felony theft includes the additional element
that the person have the intent to deprive the other person of any part of the property’s
value or use. Ind. Code Ann. § 35-43-4-2(a) (West 2012). Courts have consistently held
9
that criminal conversion is an inherently lesser-included offense of theft because it can be
established by proof of less than all of the material elements of theft. Lane v. State, 953
N.E.2d 625, 630 n.4 (Ind. Ct. App. 2011).
Our Supreme Court has held that a tactical decision not to tender a lesser-included
offense does not constitute ineffective assistance of counsel, even where the lesser-
included offense is inherently included in the greater offense and where that choice proves
detrimental to the defendant. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). “It is
not sound policy for this Court to second-guess an attorney through the distortions of
hindsight.” Id. (quotation omitted).
Here, defense counsel employed an all-or-nothing strategy, asking the jury during
closing argument to find that the evidence did not support a finding beyond a reasonable
doubt that Brown intended to deprive Chad of the value or use of any part of the slot
machine because he had intended to return it. Tr. p. 471. Without the instruction on
criminal conversion, the jury was not given an alternative other than to convict as charged
on theft (which required the additional element) or to acquit. If defense counsel had
requested an instruction on criminal conversion, Brown would have been entitled to the
instruction.5 This would have all but guaranteed a conviction. But defense counsel chose
a strategy that, if it had been successful, would have left Brown with no criminal
conviction. Given the facts of this case, the strategy, although risky, was not unreasonable.
Brown has therefore failed to establish that defense counsel’s representation fell below an
5
Brown concedes on appeal that the evidence established criminal conversion. See Appellant’s
Br. p. 14 (“The uncontradicted evidence established all of the essential elements of conversion.” &
“Brown’s actions constituted either theft or conversion—one or the other.”).
10
objective standard of reasonableness and that counsel made errors so serious that counsel
was not functioning as “counsel” guaranteed to the defendant by the Sixth Amendment.6
We therefore do not address the prejudice prong.
Affirmed.
BAKER, J., and RILEY, J., concur.
6
In a footnote, Brown alleges numerous additional instances of ineffective assistance of counsel.
See Appellant’s Br. p. 12 n.7. Brown, however, does not make a separate analysis using the two Strickland
prongs. These issues are therefore waived. Waiver notwithstanding, we find no ineffective assistance of
counsel on these additional grounds.
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