Waldon v. State

OPINION

SHARPNACK, Chief Judge.

Randall Waldon appeals his conviction for stalking, a class B misdemeanor. Waldon raises two issues for our review which we restate as:

1) whether there was sufficient evidence to support his conviction; and
2) whether he received ineffective assistance of counsel.

We affirm.

The facts most favorable to the conviction follow. In April of 1993, Waldon married Val Majors,-and they had 'a son. During the marriage, Majors worked as a nurse and taught classes at a dance studio. In Novem*207ber of 1994, Waldon and Majors divorced, stipulating to a mutual restraining order.

On the morning of December 5, 1994, Majors was driving home from the dance studio when she encountered Waldon. Waldon was walking down the street about two blocks away from the studio. Majors was fearful and alarmed to find Waldon so close to the studio.

On the morning of August 16,1995, Majors again saw Waldon as she was leaving the parking lot of the studio. Waldon was walking at a “hurried” rate toward the entrance of the parking lot. Record, p. 146. Majors was intimidated and threatened by Waldon’s actions.

On evening of August 20,1995, Majors was leaving work from the hospital when she saw Waldon standing near the parking lot. He stood about twenty-five feet away from Majors and stared at her. Although Waldon did not approach her, Majors was frightened by him.

A few days later, Majors again saw Wal-don near her studio. As Majors was getting into her car, Waldon walked slowly by her. Majors grew more fearful of her encounters with Waldon.

On the morning of November 1, 1995, Majors was getting into her car in the studio parking lot when she noticed Waldon staring at her through a fence about four feet away. Majors became very frightened and ran back to the studio. She then called the police and filed a report.

On the evening of November 7, 1995, Majors was teaching a dance class when she saw Waldon outside of the studio. Waldon was riding his bike around a dumpster in the parking lot. When the class ended, Majors was afraid to walk alone to her car, so she had a friend escort her. As Majors was leaving the parking lot, Waldon rode his bike in front of her car. Majors felt threatened by Waldon’s actions.

On December 14, 1995, the State charged Waldon with stalking. After a trial on March 7, 1996, the jury found Waldon guilty as charged. The trial court later sentenced Waldon to six months. Waldon now appeals his conviction.

I.

The first issue raised for our review is whether there was sufficient evidence to support Waldon’s conviction for stalking. When reviewing sufficiency claims, we neither reweigh the evidence nor judge the credibility of the witnesses. Brewer v. State, 646 N.E.2d 1382, 1386 (Ind.1995). Instead, we consider only the evidence which supports the conviction and all of the reasonable inferences drawn therefrom. Perry v. State, 638 N.E.2d 1236, 1242 (Ind.1994). We will affirm the conviction when there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Brewer, 646 N.E.2d at 1386. The testimony of a single witness is sufficient to sustain a conviction even when that witness is the victim. Taylor v. State, 614 N.E.2d 944, 948 (Ind.Ct.App.1993), trans. denied.

Waldon was convicted under Ind.Code § 35-45-10-5(a), which provides that a “person who stalks another person commits stalking, a Class B misdemeanor.” Stalking is defined as:

“[A] knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel .terrorized, frightened, intimidated, or threatened.”

I.C. § 35-45-10-1.

Waldon argues only that the State failed to present sufficient evidence that his encounters with Majors caused her emotional distress. Waldon asserts that based on Majors’ testimony, “the jury could not have reasonably inferred that Ms. Majors actually felt terrorized, intimidated or threatened by Mr. Waldon during these six encounters.” Appellant’s brief, p. 14.

However, the record belies Waldon’s assertion. During the trial, Majors testified that when she first saw Waldon near her studio, she became “fearful” and “alarmed.” Record,, p. 141. When Majors again saw Waldon near her studio, she felt intimidated and threatened. Next, when Majors encountered *208Waldon in the parking-lot of the hospital, she was “afraid.” Record, p. 149.

A few days later, when Majors saw Waldon near her studio, she suffered emotional distress. Majors described her distress as follows:

“It makes you feel like you don’t have a life, like you’re violated, like you have to go, you know, hurry and lock your doors, look around, scan the parking lot. It’s like you can’t go through a normal routine. You can’t even go to work. It’s frustrating. It’s a violation and makes you fearful about what the intent is.”

Record, p. 152.

Majors further testified that “the most frightening” encounter with Waldon occurred outside of the studio. Record, p. 155. When Majors was getting into her ear, she saw Waldon peering at her through a fence. Majors stated that she was “frightened because [she] was so vulnerable” and that the experience “was very upsetting.” Record, p. 155. A week later, Majors had her last encounter with Waldon near the studio. Again, Majors felt threatened and intimidated by Waldon’s actions.

Contrary to Waldon’s assertion, Majors testified that each of her encounters with Waldon caused her emotional distress. Based on her testimony, we find evidence of probative value from which the jury could conclude that Waldon caused her “to feel terrorized, frightened, intimidated, or threatened.” I.C. § 35-45-10-1; see Taylor, 614 N.E.2d at 948. Therefore, the evidence was sufficient to support Waldon’s conviction for stalking. See Brewer, 646 N.E.2d at 1386.

H.

The final issue for our review is whether Waldon received ineffective assistance of counsel. In reviewing such a claim, we apply a two step analysis. Sparks v. State, 499 N.E.2d 738, 739 (Ind.1986). First, we determine whether the acts or omissions'of counsel were outside the wide range of professionally competent assistance. Id. If so, we then determine whether such - acts or omissions prejudiced the defendant. Sulie v. State, 522 N.E.2d 380, 384 (Ind.1988), reh’g denied. To establish prejudice, the defendant must affirmatively prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Averhart v. State, 614 N.E.2d 924, 930 (Ind.1993) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)), reh’g denied.

Upon review of a claim of ineffective assistance of counsel, we measure counsel’s performance against a “reasonably effective assistance” standard. Burr v. State, 492 N.E.2d 306, 307-308 (Ind.1986). The defendant has the burden of overcoming the presumption of competence by showing strong and convincing evidence. Id. at 308. Our scrutiny is deferential and should not be distorted by hindsight; isolated poor strategy or bad tactics do not imply ineffectiveness. Id.

Waldon argues that defense counsel was ineffective for failing to cross-examine Majors and for failing to present evidence. We will address each challenge in turn.

A.

Waldon asserts that defense counsel was ineffective for failing to cross-examine Majors because “the jury would have likely weighed her testimony with less credibility.” Appellant’s brief, p. 16. We disagree.

It is well settled that the nature and extent of cross-examination is a matter of strategy delegated to trial counsel. Osborne v. State, 481 N.E.2d 376, 380 (Ind.1985); Robles v. State, 612 N.E.2d 196, 198 (Ind.Ct.App.1993). Typically, when reviewing a claim of ineffective assistance, the first step is'to examine counsel’s performance to determine whether it was outside the wide range of professionally competent assistance. See Sparks, 499 N.E.2d at 739. However, we need not conduct this step because Waldon has clearly failed to establish the second step, that such deficient performance prejudiced his case. See Sulie, 522 N.E.2d at 384.

In his-brief, Waldon has shown no favorable testimony which could have been elicited from Majors on cross-examination. See Fine v. State, 490 N.E.2d 305, 309 (Ind.1986) *209(holding that there was no showing of prejudice by counsel’s failure to cross-examine “key state’s witnesses” when defendant failed to establish that counsel could have elicited favorable testimony). As a result, Waldon cannot establish that the trial would have been different, “but for counsel’s unprofessional errors.” Averhart, 614 N.E.2d at 930. Therefore, because Waldon has not shown that he was prejudiced, we cannot conclude that he received ineffective assistance of counsel. See Sulie, 522 N.E.2d at 384.

B.

Lastly, Waldon contends that defense counsel was ineffective for failing to present any evidence. Waldon asserts that counsel’s “lack of effort ... constituted a performance below the objective standard of reasonableness.” Appellant’s brief, pp. 15-16. ■ We disagree.

For a claim of ineffective assistance to be premised on counsel’s failure to present evidence, it must be shown that such evidence existed and was reasonably available. Forehand v. State, 479 N.E.2d 552, 556 (Ind.1985). Here, Waldon does not allege; and the record does not disclose, the existence of any favorable evidence. As such, Waldon has failed to overcome the presumption of counsel’s competence by showing strong and convincing evidence. See Burr, 492 N.E.2d at 308. Accordingly, Waldon has not demonstrated that he received ineffective assistance of counsel. See id.

For the foregoing reasons, we affirm Wal-don’s conviction in all respects.

Affirmed.

RUCKER, J. concurs. BARTEAU, J., dissents with opinion.