 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                   FILED
                                                                 Dec 26 2012, 9:35 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                               CLERK
                                                                       of the supreme court,
                                                                       court of appeals and
 collateral estoppel, or the law of the case.                                 tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

KATHLEEN M. SWEENEY                                  GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     KATHERINE MODESITT COOPER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

CHRISTOPHER WHITE,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 49A04-1203-PC-102
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                                  APPEAL FROM THE COURT
                               The Honorable Robert R. Altice, Judge
                                Cause No. 49G02-0806-PC-147054
                                Cause No. 49G02-0806-FC-147054


                                         December 26, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
          Christopher White utilized the Davis/Hatton 1 procedure to bring this consolidated

direct and post-conviction appeal challenging his conviction for Fraud on a Financial

Institution 2 as a class C felony and the denial of his petition for post-conviction relief in

which he claimed that he received ineffective assistance of trial counsel. White raises the

following issues in this appeal:

          1.      Was there sufficient evidence to support White’s conviction for fraud
                  on a financial institution?

          2.      Did White receive the effective assistance of trial counsel?

          We affirm.

          In January 2008, White was a real estate developer who operated a number of business

entities, including Premier Properties USA, Inc. (Premier), of which he was general partner

and president. Premier was a privately held property management and development company

with approximately 100 employees. Christi Minars was Premier’s business comptroller and

in that capacity managed the books and records for Premier’s various corporate entities. Part

of Minars’s duties involved providing White with a daily spread sheet detailing bank account

balances. Minars frequently was in contact with White throughout the business day by

telephone and by email. Although White’s business interests were numerous, he required

that all checks issued by his business be approved by him personally.


1
 A Davis/Hatton request terminates or suspends a previously initiated direct appeal upon a request for remand
or stay, in order to allow the defendant to pursue a petition for post-conviction relief in the trial court. Hatton
v. State, 626 N.E.2d 442 (Ind. 1993); Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977). Issues initially
raised in the appeal as well as those determined in the post-conviction relief proceeding may be raised in the
appeal.
2
    Ind. Code Ann. §35-43-5-8 (West, Westlaw current through 2012 2nd Reg. Sess.).

                                                        2
       White had both personal and business accounts with National Bank of Indianapolis

(NBI), a federally insured, federally chartered bank based in Indianapolis. White, who had

maintained accounts with NBI for twelve years, was considered to be a valued customer of

NBI. Of the approximately ten personal and business accounts White maintained with NBI,

one was Reffco II, LP, and another was Premier’s payroll account (PPUSA). Tricia Rake

and Loaren Muehl, NBI employees, handled White’s personal and business accounts. Rake

was vice-president of private banking and specialized in marketing and bringing in new

clients, particularly those described as high-end clients. Muehl, who was Rake’s assistant,

handled day-to-day customer relations. Rake’s supervisor was Joyce Morris, a bank vice-

president and manager of private banking. Rank and Muehl were White’s primary contacts

at NBI and the contact with White or his employees was daily.

       Late in 2007, White opened an account at J.P. Morgan Chase Bank (Chase Bank), and

the account was held in the name of HPT, LLC and had a balance of $1,000. White opened

the account for the purpose of acquiring property in Las Vegas. White was the sole owner

and signator of HTP, LLC.

       White used an outside company, ADP, to process payroll checks for his businesses.

On a biweekly basis, the human resources department contacted Minars about the amount of

money needed to cover payroll, and Minars would inform White of the amount. White would

then authorize a transfer into the payroll account. ADP then processed the transaction with

NBI through a wire transfer from the PPUSA account to cover payroll.




                                            3
       At approximately 9:30 a.m. on January 30, 2008, Muehl sent Minars an email in

which she stated that the Reffco account was overdrawn in the amount of $60,961.70. Muehl

requested coverage for the overdraft by 10:00 a.m. that day, or the bank would have to return

the check that had caused the overdraft. At 9:34 a.m., Minars sent Muehl an email directing

her to transfer $65,000 from one of Premier’s other accounts into the Reffco account. A wire

transfer was used because it allowed for an immediate transfer of funds, instead of by check,

which takes a couple of days to clear.

       At approximately 11:30 a.m., Muehl sent a second email to Minar, Rake, and White

with the subject line reading “PPUSA.” Muehl indicated in that email that the amount

needed for payroll according to ADP was $237,476.23, and that the money needed to be in

the PPUSA account by 3:30 p.m. in order to send the wire out. The email also indicated that

the PPUSA account was overdrawn by $182,602.20.

       At 11:51 a.m., Minars forwarded to White a cash summary, which included the bank

account balances and the company’s total cash position. She informed White that the bank

account balances were insufficient to satisfy the payroll, and told White that the payroll cash

need was $425,000.00 by 3:30 p.m. The cash summary for White’s businesses showed a

total bank balance on his accounts of $132,323.09.

       White sent an e-mail response to Minars at 1:18 p.m. with a subject line of “FW:

PPUSA” stating “Lets [sic] write a check on Chase. Let me know how much.” Transcript at

86. Minars was concerned and replied at 1:19 p.m. via e-mail “$425,000—what is going

on????” Id at 87. White replied, again by e-mail, at 1:19 p.m. stating, “I guess make it 500K


                                              4
and let’s do it now.” Id. at 87. At the time of the email exchange, both White and Minars

knew that the Chase Bank account had a $1,000.00 balance.

       Minars, operating under White’s explicit instruction, prepared a check in the amount

of $500,000.00 from the HTP account held at Chase Bank for deposit in the PPUSA account

at NBI. The check was made payable to Premier Properties USA, Inc. and bore White’s

electronic signature. The check was deposited into the Reffco account and $425,000.00 was

transferred to the PPUSA account that day.

       Muehl approached Morris with a request from payroll that funds be wired to meet

payroll, or to “drawn down” on White’s account. Morris approved the payroll release from

PPUSA to ADP after learning from Muehl that a deposit was going to be made. When she

authorized the release of the funds to cover payroll, Morris believed, based on her discussion

with Muehl, that a wire would be coming in to make the funds current. Muehl sent out the

wire transfer to ADP. Several wire transfers went out from PPUSA to ADP in the amounts

of $237,476.23, $535.35, $54,346.14, and $128,015.92.

       On February 1, 2008 at 9:36 a.m., Minars notified White by email that the check from

Chase Bank had been returned. At 11:23 a.m. that same day, White sent an email to Rake, in

which he informed her that “[w]e have a check for 500K that is going to be returned to you.

We were provided information that a wire was sending money to that account. I am leaving

on a plane at this moment to confront the party that provided us with the information. It will

take me three hours to get in front of them.” Transcript at 98. The email concluded by

stating that there were “some deposits/rents coming in today” and “will report back when I


                                              5
have met with the party and found out the reason for the misinformation.” State’s Exhibit 4.

Rake replied to White’s email asking for direction as to which account the check should be

deposited in when it arrived and commenting that “[i]f that is the case based on that check

size it could cause questions as it relates to kiting.” Id.

       Rake copied Minars on the email, and when addressing her directly, stated “[i]t sounds

like [White] is out of pocket” and asking Minars if she could answer Rake’s questions. Id.

Two hours later Minars replied to Rake’s email and stated that the check was deposited the

previous Tuesday or Wednesday into the Reffco account. At the time of this email exchange,

Minars did not have any information about incoming wires or about White leaving on a plane

that day.

       On February 4, Morris met with George Keely, the head of NBI’s loan administration

department, and Keely’s supervisor. They decided to allow Rake to try to collect the amount

of the returned check from White through February 11. On the morning of February 4,

Minars sent White a cash flow summary stating that about two checks would be returned if

the overdrafts were not covered by his business by 10:00 a.m. and noting that “[t]he other

problem is the $500,000.” State’s Exhibit 5. At 9:40 a.m., Rake sent White an email stating

that the funds needed to be covered that day. White responded to Rake’s email over eight

hours later stating that he was working on covering the funds “tomorrow,” that funding “on

the big one is eminent [sic], could be tonight, could be tomorrow or the next day, etc.” and

that “there is a patriot act issue that is holding up the funds” which could be lifted “at any

moment.” Id.


                                               6
       Rake sent another email to White on the morning of February 5, again reminding him

that he needed to cover the returned check. She also inquired if White had any additional

information about his funding. White replied to Rake’s email advising her of additional

returned checks and stated, “I will be depositing 500K sometime today.” Id. On February 7,

Rake sent White an email in which she asked, “Did you get the $500,000?” Id. White

replied by email stating, “Re the 500,000, I am making the decision to do that deal today.”

Id.

       On February 8, Rake and White had a forty-five minute meeting, during which time

White spoke to Rake about funds he anticipated receiving from a transaction in Las Vegas

that had allegedly occurred in January of that year. Rake’s objective in that meeting was to

obtain funds to cover the bad check, but White did not provide any funds to Rake. The next

day, Minars sent White an email “expressing [her] concern about what was happening and

trying to get some reassurance about what was going on in general.” Transcript at 104.

White assured Minars that he had money coming in and that the situation would be managed.

       On February 11, NBI closed all of White’s accounts. Prior to NBI closing Premier’s

accounts, some additional deposits had been received in the account in which where the

returned check had been deposited. After off-setting a portion of its loss, the bank suffered a

loss of approximately $382,000. Keely spoke with White and asked him why he wrote a

check for $500,000 when he knew there was no money in that account. White responded that

he anticipated funds coming in from a Las Vegas transaction. When Keely asked White if he




                                              7
knew there was no money in the account when he wrote the check, White responded, “Yes.”

Id. at 94.

        Keely sent an email to White on February 21 and asked him whether he had heard

anything further. White responded to Keely that he had spoken to a buyer that evening and

expected a wire transfer of funds either that day or the next. On February 26, Keely notified

White by email that he had initiated action with counsel to help recover NBI’s losses. In a

follow-up email on March 6, Keely asked White where he stood in terms of repayment of the

returned check. White responded that his “legal teams are busy and require payment to look

at things.” State’s Exhibit 11.

        Early in March 2008, Keely contacted the Marion County Prosecutor’s Office for a

referral of the criminal action and outside legal counsel to initiate an action to collect

damages against White. In its civil action, NBI obtained a judgment against Premier, Reffco,

and White and seized White’s personal property valued at approximately $150,000. That

amount was applied to White’s home equity line of credit on his residence.

        In June 2008, the State charged White with one count of fraud on a financial

institution, one count of check fraud, and one count of theft, each as a class C felony. At the

conclusion of a two-day jury trial, White was found guilty on all charges. When sentencing

White, the trial court merged 3 White’s convictions for check fraud and theft with White’s

conviction for fraud on a financial institution. The trial court then imposed a four-year



3
 The trial court stated that it was merging the three convictions; however, the record reflects that the trial court
did not enter judgment on the guilty verdicts returned on the theft and check fraud offenses.

                                                         8
sentence on White’s conviction with one year to be served on home detention through

community corrections and three years suspended to probation. White was ordered to pay

restitution to NBI in the amount of $382,486.

         White filed a notice of appeal from his conviction, but later moved to dismiss his

direct appeal without prejudice in order to pursue post-conviction relief. In his petition for

post-conviction relief, White alleged that he had received ineffective assistance of trial

counsel for his failure to investigate, depose, or call Rake’s assistant, Muehl, as a witness at

trial, among other allegations. The allegations pertaining to Muehl are the only ones White

presents with respect to his petition for post-conviction relief, which was denied by the trial

court.

                                              1.

         White’s direct-appeal issue challenges the sufficiency of the evidence to sustain his

conviction of fraud on a financial institution as a class C felony. In the event his argument

on that conviction prevails, he further argues that there would be insufficient evidence to

support the merged convictions for theft and check fraud and urges their reversal as well.

         Upon review of a claim of insufficiency of the evidence, we consider only the

evidence most favorable to the judgment and the reasonable inferences that can be drawn

therefrom. Childers v. State, 813 N.E.2d 432 (Ind. Ct. App. 2004). We neither reweigh the

evidence nor reassess witness credibility. Id. We will affirm the conviction unless we

conclude that no reasonable trier of fact could find the particular defendant guilty beyond a

reasonable doubt. Id. In order to establish that White committed fraud on a financial


                                               9
institution, the State was required to prove beyond a reasonable doubt in relevant part that

White knowingly executed or attempted to execute a scheme or artifice to defraud a state or

federally chartered or federally insured financial institution. Ind. Code Ann. § 35-43-5-8

(West, Westlaw current through 2012 2nd Reg. Sess.).

       White appears to argue that the evidence supporting his conviction is insufficient

because it does not establish the five elements of common-law fraud. We stated the

following in American Heritage Banco, Inc. v. McNaughton, 879 N.E.2d 1110, 1117-18 (Ind.

Ct. App. 2008):

       In Indiana no common-law crimes exist, and the legislature fixes the elements
       necessary for any statutory crime. We may not read into a statute that which is
       not the expressed intent of the legislature. Criminal statutes cannot be
       enlarged by construction, implication, or intendment beyond the fair meaning
       of the language used. The five elements of common law fraud are not found in
       the statute defining fraud on a financial institution. In fact, the statute directly
       contradicts one of the elements of common law fraud when it includes a false
       or fraudulent promise as a basis for criminal liability. Accordingly, we will not
       read the elements of common law fraud into the crime of fraud on a financial
       institution.

(internal citations and quotations omitted). Because it is not necessary to establish the five

elements of common-law fraud in order to sustain a conviction for fraud on a financial

institution, White’s argument based upon this premise fails.

       Nonetheless, we review the evidence supporting his conviction. The mens rea

requirement for the commission of this offense is “knowingly”. I.C. § 35-43-5-8(a) “A

person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a

high probability that he is doing so.” Ind. Code Ann. §35-41-2-2(b) (West, Westlaw current

through 2012 2nd Reg. Sess.). Further, the bank fraud statute requires that any fraudulent

                                               10
activity be done knowingly at the time of execution. Klinker v. State, 964 N.E.2d 190 (Ind.

2012).

         The evidence presented at trial established that White ordered the preparation of a

check for $500,000.00 from the Chase Bank account, which both he and Minars knew had a

balance of only $1,000.00 at the time of the execution of the check. The check was issued in

order to obtain funding from NBI to cover White’s business payroll. The total cash flow

summary for that day showed a total bank balance of $132,323.09 and White needed

$425,000.00 by 3:30 p.m. in order to cover payroll. White was aware that if he did not have

the money in his payroll account by 3:30 p.m. that day, his employees would not be paid.

Since White had insufficient funds in his accounts to authorize a transfer between accounts to

make payroll, he instructed Minars to prepare the check written on the Chase bank account.

         Morris, NBI’s bank vice-president, authorized the release of funds based upon the

representation that a deposit would be made to NBI. White waited until the funds had been

released to ADP for payroll through a wire transfer prior to informing Rake at NBI that the

check was not good and would be returned. Based upon this evidence, it is reasonable for a

jury to have concluded that White acted in such a manner as to induce NBI to cover his

payroll by ordering the preparation and deposit of a check he knew would not be honored.

         After notifying Rake that the check would be dishonored, White told Rake that he

anticipated a wire transfer, and told her that he would be boarding a plane that day to

confront the person responsible for the misinformation. Minars, on the other hand, testified




                                             11
that she had no knowledge about an incoming wire transfer or of White travelling anywhere

by plane that day.

       Rake made numerous attempts to contact White and wrote emails to White on

February 4, 5, and 7, requesting that White deposit funds to cover the returned check. White

responded to those emails with promises that funding was imminent, a story that the big deal

would come through, and alleged problems involving the Patriot Act. On February 5, White

promised to deposit $500,000.00 that day. White did not make that payment and Rake

contacted him two days later about his failure to do so. White responded at that time that he

was making a decision to “do that deal today.” Exhibit Volume 5, State’s Exhibit 5, p. 4.

Rake met with White on February 8, during which time White stated that a deal was

supposed to have occurred in January, and that funding was supposed to have been supplied,

yet provided no money to the bank. A reasonable inference from this evidence is that White

lied to Rake in an effort to mislead her into the belief that funds were forthcoming.

       The jury was presented with evidence that as of January 30, 2008, White did not have

sufficient funds in his accounts to meet payroll demands. White was aware that he would not

be receiving any additional real estate loans from Dominion Capital Management, a private

finance company that had previously loaned substantial sums of money to White.

Dominion’s owner, William Brunstad, testified at trial that except for a $75,000.00 loan on a

payment to Best Buy in February, the last disbursement of a $1.8 million-dollar loan to White

occurred on January 16, 2008. Brunstad further testified that Dominion had trouble financing

the final disbursement to White. He had several conversations with White in January


                                             12
regarding the final disbursement of funds, during which he informed White that Dominion

was out of money and would not be able to make further disbursements. The jury could

reasonably infer from this testimony that White knew he had no funding from Dominion at

the time he ordered the preparation of the check from the Chase account.

       White knew there would be no future loans from Dominion after January 16, 2008,

two weeks prior to ordering the preparation of the check. White failed to act on his promises

and reassurances of payment, and on February 11, 2008, NBI closed all of his accounts. The

jury reasonably concluded from the evidence that White knowingly executed a scheme or

artifice to defraud NBI.

       White contends that his conduct leading to this conviction was no different than his

conduct on past occasions involving overdrafts. This argument was presented to the jury and

rejected. A jury in its fact-finding role is not required to believe the defendant’s evidence

and has every right to believe the State’s evidence instead. Stephenson v. State, 742 N.E.2d

463 (Ind. 2001). “A trier of fact is free to believe whomever it chooses in fulfilling its fact-

finding function.” Brown v. State, 659 N.E.2d 652, 658 (Ind. Ct. App. 1995).

       Minars testified that there were previous instances where Premier’s accounts were

overdrawn, but she could not recall an instance where a subsequently dishonored check had

been presented from another bank for deposit at NBI. Rake testified that in the past when

one of White’s accounts had been overdrawn, White would transfer money or make another

deposit to cover the overdraft. On this occasion, White’s accounts at NBI had insufficient

funds to permit a transfer. Keely also testified that the circumstances of the transaction at


                                              13
issue were different from those involving a simple overdraft and that he had not seen a

situation such as this before. The jury was entitled to choose whichever testimony it

believed. Consistent with our standard of review, we will not reweigh the evidence or

reassess witness credibility. Treadway v. State, 924 N.E.2d 621 (Ind. 2010). There was

sufficient evidence before the jury from which it could conclude that White authorized the

preparation of a check on his account with Chase Bank for $500,000.00, when he knew it

was only funded by $1,000.00 in an attempt to induce NBI to release the funds needed to

meet his company’s payroll needs.

       White also claims that he was prevented from repaying NBI because NBI had closed

all of its accounts. The record before us reflects that Keely made numerous attempts to

contact White about repayment of the returned check. It is true that the jury had evidence

before it that NBI was able to off-set some of its loss by capturing additional deposits, but the

loss was not off-set because White was making repayments. Keely waited until March

before contacting the State to pursue criminal action, and he did so after each of his attempts

to collect the money had failed. Although NBI closed White’s accounts in February, White

could have sent payment to NBI to cover the returned check nonetheless, but failed to do so.

       White also contends that he could not have committed fraud on a financial institution

because he did not cause any loss to NBI. This argument, likewise, is without merit. White

claims that since the bad check was initially deposited in the Reffco account before it was

transferred into the PPUSA payroll account, prior to that transfer, he owed NBI only

repayment for the advance. This argument has no traction because, regardless of the identity


                                               14
of the account to which the check was deposited, the deposit was used by White to induce

NBI to fund his payroll. NBI funded the payroll in reliance on White’s assurances that a

deposit was going to be made. White ordered the issuance of a check that he knew had

virtually no value for deposit with NBI, waited until the payroll had been paid, and then

informed NBI that the check would be dishonored. This evidence is sufficient to support

White’s conviction for fraud on a financial institution.

       We also find unpersuasive White’s claim premised upon the argument that he cannot

be held criminally liable as an individual because he was acting on behalf of the corporation.

In particular, he argues that the State should not have been allowed to pierce the corporate

veil to prosecute him in this matter. Our Supreme Court has very recently stated as follows:

       [W]hether a [criminal] prosecution is “the ‘wrong tool for the job’” . . . is not
       our decision to make. Rather, our job is to apply the Indiana criminal statutes
       as drafted by the Legislature. And under those statutes, the questions in this
       case include whether the Defendant[], did beyond a reasonable doubt [commit
       the criminal offense].

An-Hung Yao v. State, 975 N.E.2d 1273, 1282 (Ind. 2012). In this case, we have concluded

that there is sufficient evidence beyond a reasonable doubt to support White’s convictions

under the statutes defining the criminal offenses.

       Because we have found that there is sufficient evidence to sustain White’s conviction

for fraud on a financial institution, we do not address White’s arguments in the alternative

that there is insufficient evidence to support White’s convictions for check fraud and theft.

An analysis regarding the reinstatement of either or both of the guilty verdicts, upon which




                                              15
judgment was not entered, would be necessary only in the event there was insufficient

evidence of the conviction for fraud on a financial institution. Such is not the case here.

                                              2.

       White also appeals from the post-conviction court’s denial of his petition for post-

conviction relief in which he alleged that he received ineffective assistance of trial counsel.

White claims that trial counsel should have conducted an investigation into Muehl’s potential

testimony and should have called her as a witness at his trial. White contends that the

outcome of his trial would have been different with this testimony.

       A petitioner for post-conviction relief bears the burden of establishing the grounds for

relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Timberlake v.

State, 753 N.E.2d 591 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). White is appealing

from a negative judgment, and he must convince us that the evidence is without conflict and

leads unerringly and unmistakably to a conclusion opposite the one reached by the post-

conviction court. Id.; Jervis v. State, 916 N.E.2d 969 (Ind. Ct. App. 2009), trans. denied

(2010), cert. denied 131 S.Ct. 472 (2010). The reviewing court will not reverse the judgment

unless the petitioner shows that the evidence as a whole leads unerringly and unmistakably to

a conclusion opposite that reached by the post-conviction court. Jervis v. State, 916 N.E.2d

969. Further, the post-conviction court in this case issued findings of fact and conclusions

thereon in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a post-

conviction court’s findings and judgment only upon a showing of clear error, which leaves us

with a definite and firm conviction that a mistake has been made. Fisher v. State, 810 N.E.2d


                                              16
674 (Ind. 2004). Findings of fact are accepted unless clearly erroneous, but no deference is

accorded to conclusions of law. Id. The post-conviction court is the sole judge of the weight

of the evidence and the credibility of the witnesses. Id.

       The following standard of review is applicable to ineffective assistance of trial

counsel claims:

       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. A counsel’s
       performance is deficient if it falls below an objective standard of
       reasonableness based on prevailing professional norms. 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. Failure to satisfy either prong
       will cause the claim to fail.

Walker v. State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (internal citations omitted), trans.

denied, cert. denied, 549 U.S. 1130 (2007). There is a strong presumption that counsel

rendered adequate assistance. Stevens v. State, 770 N.E.2d 739 (Ind. 2002), cert. denied, 540

U.S. 830 (2003).

       Where a petitioner’s argument is premised on his trial counsel’s failure to present

witnesses, the petitioner must offer evidence identifying those witnesses and what their

testimony would have been. Lee v. State, 694 N.E.2d 719 (Ind. 1998). “[A] decision

regarding what witnesses to call is a matter of trial strategy which an appellate court will not

second-guess.” Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005). The failure to

call a useful witness, however, can constitute deficient performance. Brown v. State, 691

N.E.2d 438 (Ind. 1998) (citing Clark v. State, 561 N.E.2d 759 (Ind. 1990)). “Absent a clear


                                              17
showing of injury and prejudice, we will not declare counsel ineffective for failure to call a

witness.” Osborne v. State, 481 N.E.2d 376, 380 (Ind. 1985). Trial strategy is not subject to

attack in an ineffective assistance of counsel claim unless the strategy is so deficient or

unreasonable that it falls outside the objective standard of reasonableness. Autrey v. State,

700 N.E.2d 1140 (Ind. 1998).

       The record of the hearing on White’s petition for post-conviction relief reflects that

White’s trial counsel made a reasonable strategic decision not to call Muehl as a witness at

trial. He interviewed Muehl prior to trial and based on her statements to him about her

recollection of the events decided that her testimony would damage the defense theory. In

particular, he believed that Muehl’s testimony would alter the timeline the defense was using.

White’s attorney concluded that if Muehl testified she would state that she did not wire the

money for payroll until after the check was deposited and after White became upset with her.

She would have testified that he pressured her to advance funds he needed to meet payroll.

Morris, who did testify at trial, corroborated this information by stating that the request to

advance the funds was premised upon the notion that it was “imperative” because it was

connected to payroll. Transcript at 267. The only way Morris would have reached the

conclusion was because Muehl conveyed that information to her. The only way Muehl

would have had that information was because White had told her so.

       Muehl’s testimony at the hearing on White’s petition was that she advised Morris that

a deposit would be coming in later in the afternoon to cover the funds for payroll. In large

part, Muehl’s testimony was consistent with that of Morris. Muehl approached Morris with a


                                             18
draw-down of White’s account, indicated that there were insufficient funds in White’s

accounts to cover payroll, and that Muehl needed Morris’s approval in order for the funds to

be released to payroll. Further, Muehl testified at the hearing that she transferred the funds

that were deposited in the Reffco account to the PPUSA account because the funds were

needed to cover the wire for payroll.

       White claims that Muehl’s testimony was necessary at trial because it would have

established his theory that NBI caused its own loss. Muehl testified at the hearing that one of

White’s accounts was frequently overdrawn, and the jury heard evidence at trial that NBI

permitted numerous overdrafts on White’s business accounts. Muehl testified that although

White had overdrawn his accounts on at least ten prior occasions in 2007, he covered those

overdrafts in a timely manner.

       Moreover, Muehl’s testimony did not contradict the evidence at trial that White knew

the account at Chase Bank had a balance of $1,000.00 when he ordered the check for

$500,000.00 on that account. Further, even though Muehl testified at the hearing that she

transferred the money from the Reffco account to the PPUSA account because she believed

that it was needed to cover payroll, the evidence at trial showed that the deposit was made to

induce NBI to fund White’s payroll and that NBI acted in reliance on White’s assurance that

a deposit would be made.

       The post-conviction court’s conclusion that White failed to meet his burden of

establishing the ineffective assistance of trial counsel is supported by the record. White’s




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attorney made a reasonable strategic decision not to call Muehl as a witness after talking with

her about her potential testimony. 4

        Judgment affirmed.

BROWN, J., and PYLE, J., concur.




4
  In his brief, White makes a passing reference to his trial attorney’s failure to subpoena documents from NBI
as an example of his ineffective representation of White. That allegation was probed at the hearing on White’s
petition, but the argument is not developed in his appellate brief beyond the passing reference. As such, the
argument is waived for appellate review. See Davis v. State, 835 N.E.2d 1102 (Ind. Ct. App. 2005) (issue
waived for review if not supported by argument or citation to authority and record); Ind. Appellate Rule
46(A)(8)(a) (appellant’s arguments must be supported by cogent reasoning and citations to the authorities,
statutes, and appendix that were relied on).

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