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
                                                     Dec 27 2013, 7:15 am
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

VICKIE YASER                                     KARL M. SCHARNBERG
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOHN D. MAY,                                     )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )        No. 28A05-1307-PC-320
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                      APPEAL FROM THE GREENE CIRCUIT COURT
                           The Honorable Erik C. Allen, Judge
                              Cause No. 28C01-1201-PC-1



                                      December 27, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

       John D. May was convicted of possession of methamphetamine while in

possession of a firearm, a Class C felony, following a jury trial. On direct appeal, this

court affirmed his conviction. See May v. State, No. 28A01-0409-CR-397 (Ind. Ct. App.

February 28, 2005) (“May I”). May subsequently petitioned for post-conviction relief,

which the post-conviction court denied. He now appeals, challenging the post-conviction

court’s judgment, and he raises a single issue for our review, namely, whether he was

denied the effective assistance of trial counsel.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In May I, we set out the facts and procedural history as follows:

       The facts most favorable to the judgment demonstrate that on May 12,
       2003, Amy Honchell, Justin May (Justin), and John D. May (May) were at
       the home of Justin and May’s grandmother, Donna May (Donna). Justin
       and May were brothers and had been raised by Donna since they were
       infants. Honchell was Justin’s girlfriend.

              Gerald Ray (Gerald), Donna’s son and Justin and May’s uncle, was
       also at Donna’s house on May 12th. An argument ensued between Gerald
       and May wherein Gerald told May to stop threatening Donna and to remove
       May’s methamphetamine lab from Donna’s house. During the argument,
       Justin hit Gerald with a guitar and May beat Gerald with a shotgun. Gerald
       eventually escaped to a neighbor’s house and the neighbor called the police.
       When Gerald returned to Donna’s house, May, Justin, and Honchell were
       gone.

              When Gerald and his nephews began arguing, Honchell left the
       house and waited in her car. Justin and May eventually came out of the
       house and Honchell saw May carrying a gun and a brown bag. Justin
       requested the car keys from Honchell, Honchell gave the keys to Justin,
       May placed the bag in the trunk, and then May got into the back seat with
       the gun. Honchell drove the group to a friend’s house in Coalmont,


                                              2
      Indiana. At the time, May informed Honchell he did not want the bag at his
      grandmother’s house because he thought Gerald would call the cops on
      him. After spending a few hours in Coalmont, Honchell drove May and
      Justin back to her apartment.

             While Honchell, Justin, and May were driving to Coalmont, the
      police were arriving at Donna’s house in response to the neighbor’s phone
      call. Donna requested that the police search her home because she believed
      Justin and May might be keeping drugs at her house. Police searched the
      premises and located equipment to manufacture methamphetamine and a
      recipe for its manufacture in May’s bedroom.

             As police were investigating the battery case, Honchell, Justin, and
      May decided to drive uptown, and in doing so drove by Donna’s house.
      Upon identification of Honchell’s car, Officer Paul Clark initiated a traffic
      stop and searched the car with Honchell’s consent. Officers found a gun in
      the backseat at May’s feet and the brown bag in the trunk, inside of which
      was methamphetamine.

             On August 8, 2003, the State charged May with two felony counts:
      (1) Count I, manufacturing methamphetamine; and (2) Count II,
      simultaneously possessing methamphetamine and a firearm. A jury trial
      took place April 22, 2004. The jury acquitted May on Count I but found
      him guilty on Count II. The trial court sentenced May to eight years, to be
      served consecutive[ to] the sentences in two other matters.

      On direct appeal, May asserted that the evidence was insufficient to support his

conviction.   Specifically, May claimed that the State failed to demonstrate that he

constructively possessed the methamphetamine because the bag containing the

methamphetamine had been locked in Honchell’s trunk and he did not have control over

it. We rejected May’s contention and affirmed his conviction.

      May raised several issues in his petition for post-conviction relief. The post-

conviction court denied his petition following a hearing. This appeal ensued.




                                            3
                                 DISCUSSION AND DECISION

        The petitioner bears the burden of establishing his grounds for post-conviction

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

State, 707 N.E.2d 767, 773 (Ind. 1999), cert. denied, 529 U.S. 1088 (2000). To the extent

the post-conviction court denied relief in the instant case, May appeals from a negative

judgment and faces the rigorous burden of showing that the evidence as a whole “‘leads

unerringly and unmistakably to a conclusion opposite to that reached by the [] court.’”

See Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999) (quoting Weatherford v. State,

619 N.E.2d 915, 917 (Ind. 1993)), cert. denied, 529 U.S. 1113 (2000). It is only where

the evidence is without conflict and leads to but one conclusion, and the post-conviction

court has reached the opposite conclusion, that its decision will be disturbed as contrary

to law. Bivins v. State, 735 N.E.2d 1116, 1121 (Ind. 2000).

        May’s sole contention on appeal is that he was denied the effective assistance of

trial counsel.1 There is a strong presumption that counsel rendered effective assistance

and made all significant decisions in the exercise of reasonable professional judgment,

and the burden falls on the defendant to overcome that presumption. Gibson v. State, 709

N.E.2d 11, 13 (Ind. Ct. App. 1999), trans. denied. To make a successful ineffective

assistance claim, a defendant must show that: (1) his attorney’s performance fell below

an objective standard of reasonableness as determined by prevailing professional norms;

and (2) the lack of reasonable representation prejudiced him. Mays v. State, 719 N.E.2d


        1
          May does not appeal the post-conviction court’s resolution of the other issues raised in his post-
conviction petition.


                                                     4
1263, 1265 (Ind. Ct. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)), trans. denied.

        Deficient performance is representation that fell below an objective standard of

reasonableness by the commission of errors so serious that the defendant did not have the

“counsel” guaranteed by the Sixth Amendment. Roberts v. State, 894 N.E.2d 1018, 1030

(Ind. Ct. App. 2008), trans. denied. Consequently, our inquiry focuses on counsel’s

actions while mindful that isolated mistakes, poor strategy, inexperience, and instances of

bad judgment do not necessarily render counsel’s representation ineffective. Id. Even if

a defendant establishes that his attorney’s acts or omissions were outside the wide range

of competent professional assistance, he must also establish that, but for counsel’s errors,

there is a reasonable probability that the result of the proceeding would have been

different. See Steele v. State, 536 N.E.2d 292, 293 (Ind. 1989).

        Here, May contends that his trial counsel, James Riester, did not adequately

impeach Honchell using her allegedly inconsistent statements regarding when and how

she knew that there was anhydrous ammonia in the trunk of her car. 2 In particular, May

points out that, during her deposition, Honchell initially testified that she did not know

prior to the officers’ search of her car that there was anhydrous ammonia in the trunk.

But when she was subsequently asked about the factual basis for her guilty plea, she

        2
           In his post-conviction petition, May also contended that his trial counsel’s performance was
deficient in that he did not question Honchell about several packages of ephedrine or pseudoephedrine
officers found in plain view in her apartment. But May does not address that contention in the argument
section of his brief on appeal other than a passing remark in the concluding paragraph of that section,
namely, a vague reference to the jury’s failure to hear about Honchell’s “apartment’s use to store key
ingredients[.]” Appellant’s Brief at 20. But May references this contention more extensively in his reply
brief. To the extent May intended to raise this issue on appeal, the issue is waived. See Ind. Appellate
Rule 46(C).


                                                   5
explained that she had seen Justin place a jar of anhydrous ammonia in the trunk of her

car a few days prior to the search. Then, at trial, Honchell testified that no one had had

access to the trunk of her car for one week prior to the officers’ search. And while she

initially testified that she did not know what was in the brown bag in the trunk prior to the

officers’s search, when she was subsequently asked to explain her guilty plea to the jury

she stated that, between the time they had left the house and the officers’ search of her

car, Justin had told her that there was anhydrous ammonia in the brown bag.

       In other words, May contends that Riester was ineffective in that he did not

question Honchell regarding her inconsistent statements “about how she knew she was

illegally transporting anhydrous ammonia in such a way that diverted attention away

from a recent act committed by her boyfriend, in which she was complicit, that was

similar to the charge against John,” and her “lie[] when she told the jury no one had

accessed her trunk or put anything else in her trunk in the days leading up to the search of

her vehicle[.]” Reply Brief at 1. May maintains that “[t]here is more than a reasonable

probability that[,] had the jury heard” about these inconsistencies in Honchell’s story,

“they would not have voted to convict John May of putting a bag containing

methamphetamine in the trunk of her car.” Appellant’s Brief at 20. We cannot agree.

       Our supreme court has held that the method of impeaching witnesses is a tactical

decision and a matter of trial strategy that does not amount to ineffective assistance.

Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind. 2010). In Kubsch, the defendant asserted

in his petition for post-conviction relief that his trial counsel “rendered deficient

performance for not using all available evidence” to impeach a key witness, including


                                             6
evidence “of a theft conviction and a false report of a rape” made by the witness. Id. Our

supreme court rejected that contention, pointing out that defense counsel had impeached

the witness’ credibility using other means. Id. And in Bivins v. State, 735 N.E.2d 1116,

1134 (Ind. 2000), our supreme court rejected a similar argument and held that:

      While there were inconsistencies between some of the out-of-court and in-
      court statements and between the in-court testimony of these two witnesses
      that might have been useful for impeachment purposes, counsel is
      permitted to make reasonable judgments in strategy. See Olson v. State,
      563 N.E.2d 565, 568 (Ind. 1990) and Fugate v. State, 608 N.E.2d 1370,
      1373 (Ind. 1993) (each holding that the method of impeaching witnesses
      was a tactical decision, a matter of trial strategy, and did not amount to
      ineffective assistance of counsel). Here, trial counsel repeatedly placed the
      credibility of Chambers and Weyls into question. In opening argument,
      trial counsel vigorously raised its “the deal with the squeal” theme,
      emphasizing the fact that Chambers entered into a favorable plea agreement
      and that both Chambers and Weyls were granted use-immunity. As
      discussed supra, counsel repeatedly attacked the credibility of Chambers
      and Weyls using the plea agreements, the use-immunity arrangements, and
      their prior convictions. The post-conviction court’s findings support its
      conclusion that counsel’s cross-examination of Chambers and Weyls was
      not deficient within the meaning of the first prong of the Strickland test
      and, as such, Bivins was not denied the effective assistance of counsel to
      which he was entitled.

(Emphasis added).

      Here, at the post-conviction hearing, Riester testified in relevant part as follows:

      Q:     Would you, what would be your reason for not ensuring that the jury
      knew that Amy testified at trial that the only reason she knew about what
      was in the trunk was because Justin had told her that John put a bag with
      anhydrous [ammonia] in it, as opposed to what she told you at her
      deposition that Justin had put a jar of anhydrous [ammonia] in the car three
      days earlier?

      A:      I believe her testimony at trial concerned what she, she [sic] was
      testifying about a jar that was in the bag. Because Justin told her that there
      was a bag of or there was a jar of anhydrous [ammonia] in the bag is I
      believe what she testified to at trial. That’s not inconsistent with her saying


                                             7
       to Justin [sic] had put a different jar in the trunk of the car three days
       earlier.

       Q:     So you didn’t [sic].

       A:     Which I think they were talking about two different jars.

       Q:    You didn’t see that as helpful to the defense that Justin had put a jar
       of anhydrous [ammonia] in the car three days before?

       A:      Well, I think the issue was, what was in the bag and who put it there.
       The real issue was, I don’t think there was any discrepancies, was any
       controversy as to what was in the bag. The question was who put the bag
       in the trunk.

PCR Transcript at 34-35. While Riester admitted that his general practice is to impeach a

witness at trial if they say something inconsistent, his explanation for not having gone

into the alleged inconsistencies asserted by May in his post-conviction petition is

reasonable.

       Moreover, Riester cross-examined Honchell regarding the enormous benefit she

received by pleading guilty. Instead of a possible ten or twenty-year sentence, Honchell

testified that she spent twenty days in jail. And during his closing argument, Riester

emphasized, repeatedly, that Honchell was not credible because it was in her self-interest

to testify that it was May who placed the brown bag in the trunk. Further, the evidence

showed Honchell’s bias because she was Justin’s girlfriend. And Honchell was exposed

for having lied about whether she knew there was anhydrous ammonia in the trunk of her

car before the officers performed the search.

       The post-conviction court found and concluded in relevant part as follows:

       . . . Attorney Riester presented a lengthy defense at trial consisting of the
       following witnesses: Justin May, Donna May, Amanda “Kristy” May,


                                                8
      Jerry May, Ina Fields, and Edna Myers. These witnesses advanced the
      defense theory that Gerald May was attempting to set up Petitioner in order
      to get him out of the house, and that Amy Honchell was lying about seeing
      John D. May place the bag containing methamphetamine in the trunk of her
      car. Attorney Riester was at least partially successful in his defense as
      Petitioner was acquitted of the higher level offense of Dealing in
      Methamphetamine, as a Class B felony.

      8.      Petitioner has presented no evidence other than to suggest that
      Attorney Riester failed to ask certain questions that in hindsight might have
      been relevant to impeachment of Amy Honchell. This is reasonably a
      matter of trial strategy that does not amount to ineffectiveness.
      Additionally, Attorney Riester presented a vigorous defense which was
      successful in acquitting Petitioner of the higher level charge. Finally, upon
      questioning by Petitioner’s attorney, Attorney Riester gave valid strategic
      reasons for everything he did at the trial level. Petitioner has therefore
      failed to meet his burden.

Appellant’s App. at 227. We cannot say that the evidence as a whole “‘leads unerringly

and unmistakably to a conclusion opposite to that reached by the [] court.’”          See

Williams, 706 N.E.2d at 153. Thus, we affirm the post-conviction court’s judgment.

      Affirmed.

BAKER, J., and CRONE, J., concur.




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