MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be                                   Sep 12 2016, 8:42 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nancy E. McCaslin                                        Gregory F. Zoeller
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marc Lindsey,                                            September 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1508-CR-1086
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable David C.
Appellee-Plaintiff.                                      Bonfiglio, Judge
                                                         Trial Court Cause No.
                                                         20D06-1210-FD-1224



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016       Page 1 of 18
[1]   Marc Lindsey appeals his conviction of Class D felony operating a vehicle

      while intoxicated. 1 He presents five issues for our review which we restate as:


                 1. Whether the prosecutor committed misconduct during closing
                 argument;


                 2. Whether the trial court properly instructed the jury regarding
                 the element of endangerment;


                 3. Whether the State presented sufficient evidence Lindsey
                 committed Class D felony operating a vehicle while intoxicated; 2


                 4. Whether the trial court erred when it delayed Lindsey’s
                 sentencing past the thirty-day statutory limit; and


                 5. Whether Lindsey’s trial counsel was ineffective.


      We affirm.



                                Facts and Procedural History
[2]   On October 11, 2012, Officer Evan Witt initiated a traffic stop after he observed

      Lindsey exceeding the speed limit. Lindsey pulled into a nearby driveway and

      began to exit the vehicle. Officer Witt told Lindsey to stay in the vehicle.




      1
          Ind. Code § 9-30-5-3(1) (2008).
      2
       The trial court also convicted Lindsey of Class A misdemeanor driving while suspended. He does not
      challenge that conviction.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016    Page 2 of 18
      Lindsey again attempted to exit the vehicle, and Officer Witt again told Lindsey

      to remain in the vehicle.


[3]   When Officer Witt approached Lindsey’s vehicle, he noticed Lindsey “was

      fumbling as he [was] putting the keys back in the ignition” so he could roll

      down the window. (Tr. at 108.) Once Lindsey rolled down the window,

      Officer Witt noticed a heavy odor of alcoholic beverage and Lindsey’s glassy

      and bloodshot eyes. Officer Witt told Lindsey he had observed Lindsey

      speeding, and Lindsey indicated his license was suspended and asked Officer

      Witt not to give him a speeding ticket. Officer Witt noticed Lindsey’s speech

      was slurred.


[4]   Officer Witt then asked Lindsey to complete three standard field sobriety tests

      and Lindsey failed all three. Officer Witt asked Lindsey to take a Certified

      Chemical Test and Lindsey refused. Lindsey was arrested and transported to

      jail, where he again refused to take a Certified Chemical Test.


[5]   On October 15, 2012, the State charged Lindsey with Class A misdemeanor

      operating a vehicle while intoxicated, Class A misdemeanor operating a vehicle

      while suspended, and Class D felony operating a vehicle while intoxicated,

      which is an enhancement of the misdemeanor charge based on Lindsey’s prior

      conviction of driving while intoxicated. 3 On June 1, 2015, a jury returned a

      guilty verdict on all charges. The trial court merged the two operating a vehicle



      3
          Ind. Code § 9-30-5-2(b).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016   Page 3 of 18
      while intoxicated verdicts and entered convictions of Class D felony driving

      while intoxicated and Class A misdemeanor operating while suspended. On

      July 15, 2015, the trial court sentenced Lindsey to three years for the Class D

      felony and one year for the Class A misdemeanor, to be served concurrently.



                                 Discussion and Decision
                                  I. Prosecutorial Misconduct
[6]   Our standard of review regarding alleged prosecutorial misconduct is well-

      settled:

              In reviewing a claim of prosecutorial misconduct properly raised
              in the trial court, we determine (1) whether misconduct occurred,
              and if so, (2) “whether the misconduct, under all of the
              circumstances, placed the defendant in a position of grave peril to
              which he or she would not have been subjected” otherwise.
              Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
              v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
              duty to present a persuasive final argument and thus placing a
              defendant in grave peril, by itself, is not misconduct. Mahla v.
              State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s
              argument constitutes misconduct is measured by reference to
              case law and the Rules of Professional Conduct. The gravity of
              peril is measured by the probable persuasive effect of the
              misconduct on the jury’s decision rather than the degree of
              impropriety of the conduct.” Cooper, 854 N.E.2d at 835
              (emphasis added) (citations omitted). To preserve a claim of
              prosecutorial misconduct, the defendant must - at the time the
              alleged misconduct occurs - request an admonishment [sic] to the
              jury, and if further relief is desired, move for a mistrial. Id.


      Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied.
      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016   Page 4 of 18
[7]   Though he objected to one of the prosecutor’s statements during closing

      arguments, Lindsey did not request an admonition or move for a mistrial.

      Thus, Lindsey failed to preserve his claim of prosecutorial misconduct and must

      establish fundamental error. See id. at 667-68. Error is fundamental when it so

      blatantly violates basic elementary principles that its harm or potential for harm

      is inescapable, and the prejudicial effect of the violation is such that the

      defendant’s right to a fair trial is eviscerated. Id. at 668. The defendant carries

      a heavy burden in demonstrating fundamental error. Id.


[8]   Lindsey asserts prosecutorial misconduct based on two statements during

      closing argument. Lindsey objected to the first:


              [State]:         . . . Refusal to take this [breath test] will result in
                               your license being suspended for at least one year.
                               You heard, you heard Officer Witt testify, you
                               heard Officer Witt read that from memory. That’s
                               because he reads it a lot. He memorizes it. When
                               you’ve done something a hundred plus times, it
                               sticks in your head. So you ask yourself, why didn’t
                               he take the test?


              [Lindsey]:       Objection, your Honor. That is improper.


              [Court]:         I think the law allows it to be admitted into
                               evidence that --


              [Lindsey]:       He has the right to refuse.


              [Court]:         But the law says it can be admitted into evidence so
                               counsel can argue what it means.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016   Page 5 of 18
        [Lindsey]:       Thank you, your Honor.


        [State]:         So why didn’t he take the test? Because he knew he
                         was intoxicated. So he would rather take the
                         lengthy, an additional lengthy suspension on his
                         license rather than take that test and prove the
                         inevitable. In opening statement the defense said
                         that he didn’t take that breath test because he didn’t
                         want to be railroaded. And, again, I suggest to you,
                         he didn’t take that test, not because he didn’t want
                         to be railroaded, because he knew he was
                         intoxicated.


(Tr. at 191-2.) Lindsey did not object to the second statement:

        [State]:         And as jurors you can use your common sense what
                         reason would Mr. Lindsey have to refuse to take
                         that test if he wasn’t intoxicated. Why would be
                         [sic], for lack of a better word, why would he eat a
                         one year license suspension if he wasn’t afraid of the
                         results?


                         If it was true that the Field Sobriety Tests were all
                         incorrect, that he has a medical condition that
                         validate [sic] those results, that he didn’t have
                         anything to drink. That is [sic] was Listerine on his
                         breath that the officer smelled, that his red eyes
                         were a result of being tired, that driving 62 in a 35
                         mph zone, if all those weren’t evidence of
                         intoxication, weren’t evidence of impairment, he
                         could have solved that very easily that day by just
                         blowing into a Certified Breath Test, and if what he
                         was saying was true it would have read .00.




Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016   Page 6 of 18
                               But instead he said, nope, I’m not going to do that.
                               I’m going to eat a one year driver’s license
                               suspension and like I said, you can use your
                               common sense. He did that because he knew what
                               the results would be. That’s why that, the fact right
                               there is the strongest part of our case. I’m not
                               telling you the defendant was (Inaudible.) [sic] it’s
                               not just me. It’s not just the [S]tate. It’s not just
                               Patrolman Witt. Even the defendant on that date
                               knew he was operating while intoxicated and he
                               didn’t want to give us the evidence and that’s why
                               [he] refused.


      (Id. at 206-7.)


[9]   The United States Supreme Court’s holding Doyle v. Ohio, 426 U.S. 610, 619

      (1976), prohibits the prosecution from commenting on a defendant’s post-arrest

      silence. Lindsey argues the State’s comments regarding his refusal to take a

      Certified Chemical Test contravened the holding in Doyle. However, Lindsey’s

      Doyle argument is misplaced, as the prosecutor’s comments targeted not

      Lindsey’s post-arrest silence but his refusal to take a Certified Chemical Test.

      Refusal to submit to such a test is admissible into evidence under Ind. Code § 9-

      30-6-3. It is well settled parties may discuss “any argument as to position or

      conclusions based on the attorney’s analysis of the evidence.” Taylor v. State,

      457 N.E.2d 594, 599 (Ind. Ct. App. 1983). Lindsey’s refusal to take the

      chemical test was properly in evidence, and the statements during closing

      argument were the State’s commentary on the evidence before the jury.

      Additionally, the trial court instructed the jury, “[s]tatements made by the

      attorneys are not evidence.” (App. at 145.) As the statements were proper and
      Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016   Page 7 of 18
       Lindsey did not show the statements put him in grave peril of receiving an

       unfair trial, we cannot find fundamental error. 4 Cf. Ryan, 9 N.E.3d at 668

       (fundamental error exists when defendant demonstrates error put him in grave

       peril of an unfair trial).


                     II. Jury Instruction Regarding Endangerment
[10]   Our standard of review regarding the trial court’s decision on jury instructions

       is well-settled:

                The purpose of jury instructions is to inform the jury of the law
                applicable to the facts without misleading the jury and to enable
                it to comprehend the case clearly and arrive at a just, fair, and
                correct verdict. In reviewing a trial court’s decision to give a
                tendered jury instruction, we consider (1) whether the instruction
                correctly states the law, (2) is supported by the evidence in the
                record, and (3) is not covered in substance by other instructions.
                The trial court has discretion in instructing the jury, and we will
                reverse only when the instructions amount to an abuse of
                discretion. To constitute an abuse of discretion, the instructions
                given must be erroneous, and the instructions taken as a whole
                must misstate the law or otherwise mislead the jury. We will




       4
         Lindsey also claims the statements shifted the burden of proof to him to prove why he did not take the
       Certified Chemical Test. However, Lindsey did not develop an argument or cite case law to support his bald
       assertions. Therefore, the issue is waived for failure to make a cogent argument. See Ind. App. Rule
       46(A)(8)(a) (assertions on appeal must be supported by cogent argument); see also Matheney v. State, 688
       N.E.2d 883, 907 (Ind. 1997) (failure to make cogent argument waives issue on appeal), reh’g denied, cert.
       denied. Waiver notwithstanding, Lindsey’s argument seems to be his attempt to demonstrate the prejudice
       required for our Court to find fundamental error in the prosecutor’s comments. See Ryan, 9 N.E.3d at 668
       (fundamental error exists when the error is so prejudicial that it eviscerates the defendant’s right to a fair
       trial). As we hold the statements at issue were proper comments on the admissible evidence, we need not
       consider their alleged prejudicial effect. See Hancock v. State, 737 N.E.2d 791, 798 (Ind. Ct. App. 2000)
       (prosecutor’s statement regarding the evidence was not prosecutorial misconduct and thus not fundamental
       error).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016         Page 8 of 18
               consider jury instructions as a whole and in reference to each
               other, not in isolation.


       Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). “A defendant is only

       entitled to reversal if he affirmatively demonstrates that the instructional error

       prejudiced his substantial rights.” Hero v. State, 765 N.E.2d 599, 602 (Ind. Ct.

       App. 2002), trans. denied.


[11]   The trial court proposed the following instruction regarding the definition of the

       word “endangerment” as an element of Ind. Code § 9-30-5-2(b):

                          DEFINITION “TO ENDANGER A PERSON”


               Endangerment can be established by showing that the
               defendant’s condition or operating manner could have
               endangered any person, including the public, the police, or the
               defendant. Endangerment does not require that a person other
               than the defendant was in the path of the defendant’s vehicle or
               in the same area. The evidence must include more than a mere
               showing of intoxication.


       (App. at 110) (capitalization in original). Lindsey objected:


               [Lindsey]: . . . My quarrel with it is the heading. Definition:
               To Endanger a Person. It’s really not defining endangerment in
               any way. It says endangering can be established by showing the
               defendant’s condition or operating manner could have
               endangered, using the same word, any person, including the
               public, etc. It goes on to say what the requirements are. That it’s
               not required other than defendant was in the path of defendant’s,
               it doesn’t require somebody in the path of the vehicle and it has
               to be more than a mere showing. All of that I believe is a correct
               statement of the law, but it is not a definition and I think that just
       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016   Page 9 of 18
               really misleads the jury into thinking that if they, um, it’s kind of
               like a circular argument that if they find that, they don’t have to
               find that there was somebody actually injured that there, there
               was a path were [sic] somebody was in the path of defendant’s
               vehicle, etc. that they’re off the hook on endangerment, but I
               really think that there is a word named endangerment that has an
               actual definition and that is not the definition of it.


       (Tr. at 82.)


[12]   On appeal, Lindsey argues the trial court abused its discretion when it gave the

       endangerment instruction because it was “incomplete and, could have misled

       the jury, and, therefore, did not correctly state the law.” (Br. of Appellant at

       14.) However, Lindsey conceded during trial, “[a]ll of that I believe is a correct

       statement of law.” (Tr. at 82.) Thus, Lindsey cannot now argue the instruction

       is an incorrect statement of law. See Meriweather v. State, 984 N.E.2d 1259, 1263

       (Ind. Ct. App. 2013) (appellant cannot present one argument at trial and a

       different argument on appeal), trans. denied.


[13]   Furthermore, contrary to Lindsey’s assertion, the instruction is an accurate

       legal explanation of “endangerment” as used in Ind. Code § 9-30-5-2(b):

               The element of endangerment can be established by evidence
               showing that the defendant’s condition or operating manner
               could have endangered any person, including the public, the
               police, or the defendant. Staley v. State, 895 N.E.2d 1245, 1249
               (Ind. Ct. App. 2008) (citing Blinn v. State, 677 N.E.2d 51, 54 (Ind.
               Ct. App. 1997)). Endangerment does not require that a person
               other than the defendant be in the path of the defendant’s vehicle
               or in the same area to obtain a conviction. Id. at 1251 (citing
               State v. Krohn, 521 N.E.2d 374, 377 (Ind. Ct. App. 1988)). . . . By

       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 10 of 18
               definition the statute requires more than intoxication to prove
               endangerment.


       Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied.

       The instruction was an accurate statement of law and thus the trial court did

       not abuse its discretion when it denied Lindsey’s request to change it.


                                III. Sufficiency of the Evidence
[14]   When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

       fact-finder’s role, and not ours, to assess witness credibility and weigh the

       evidence to determine whether it is sufficient to support a conviction. Id. To

       preserve this structure, when we are confronted with conflicting evidence, we

       consider it most favorably to the trial court’s ruling. Id. We affirm a conviction

       unless no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Id. It is therefore not necessary that the evidence

       overcome every reasonable hypothesis of innocence; rather, the evidence is

       sufficient if an inference reasonably may be drawn from it to support the

       factfinder’s decision. Id. at 147.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 11 of 18
[15]   To prove Lindsey committed Class A misdemeanor 5 operating a vehicle while

       intoxicated endangering a person, the State had to present sufficient evidence he

       operated a vehicle while intoxicated “in a manner that endangers a person.”

       Ind. Code § 9-30-5-2(b). The statute defines “intoxicated” as “under the

       influence of . . . (1) alcohol . . . so that there is an impaired condition of thought

       and action and the loss of normal control of a person’s faculties.” Ind. Code §

       9-13-2-86.


[16]   Impairment can be proven based on evidence of: “(1) the consumption of a

       significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or

       bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6)

       failure of field sobriety tests; and (7) slurred speech.” Vanderlinden, 918 N.E.2d

       at 644. The State presented evidence Lindsey was impaired. Officer Witt

       testified Lindsey fumbled to get his keys in the ignition of his vehicle, he

       smelled of alcohol, and he had bloodshot and glassy eyes. Lindsey failed three

       Standard Field Sobriety Tests. Lindsey’s alternative explanations for his

       condition are invitations for us to reweigh the evidence and judge the credibility

       of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate

       court cannot reweigh the evidence or judge the credibility of witnesses).




       5
         The conviction of driving while intoxicated in a manner that endangers a person was entered as a Class D
       felony based on Lindsey’s prior conviction of driving while intoxicated. Lindsey does not challenge the prior
       conviction.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 12 of 18
[17]   To prove Lindsey was intoxicated “in a manner that endanger[ed] a person,”

       Ind. Code § 9-30-5-2(b), the State had to present evidence “showing that the

       defendant’s condition or operating manner could have endangered any person,

       including the public, the police, or the defendant.” See Vanderlinden, 918

       N.E.2d at 644. Endangerment does not require “a person other than the

       defendant be in the path of the defendant’s vehicle or in the same area to obtain

       a conviction.” Id. at 644-5. While intoxication alone is not enough to prove

       the endangerment element, the evidence is sufficient to prove a person was

       intoxicated in a manner that endangers another if the person is exceeding the

       speed limit. Id. at 646.


[18]   Officer Witt testified he stopped Lindsey after he saw Lindsey traveling sixty-

       two miles per hour in a thirty-five miles per hour zone. There was evidence

       Lindsey operated his vehicle in a manner that endangered a person under Ind.

       Code § 9-30-5-2(b). Lindsey’s argument regarding the lack of physical evidence

       to corroborate Officer Witt’s testimony is an invitation for us to reweigh the

       evidence and judge the credibility of witnesses, which we cannot do. See Drane,

       867 N.E.2d at 146 (appellate court cannot reweigh the evidence or judge the

       credibility of witnesses).


                                      IV. Delay in Sentencing
[19]   “Upon entering a conviction, the court shall set a date for sentencing within

       thirty (30) days, unless for good cause shown an extension is granted.” Ind.

       Code § 35-38-1-2(b). The sentencing court is excused from the thirty-day


       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 13 of 18
       sentencing requirement where there is good cause for delay. Vandergriff v. State,

       653 N.E.2d 1053, 1053 (Ind. Ct. App. 1995). Good cause is “presumed where

       the record is silent as to the reason for the delay and the defendant made no

       objection.” Id.


[20]   On June 1, 2015, a jury found Lindsey guilty as charged and the trial court

       entered convictions of Class A misdemeanor driving while suspended and Class

       D felony operating a vehicle while intoxicated. The trial court set Lindsey’s

       sentencing date for June 24, 2015. On June 18, 2015, the trial court

       rescheduled Lindsey’s sentencing hearing for July 15, 2015, stating: “this

       judicial officer’s required attendance on June 24, 2015, at an evidentiary

       hearing in Indianapolis: In the Attorney Reinstatement Matter of: F. Anthony

       Zirkle and a previously planned vacation, this matter is re-set [sic] for

       sentencing on July 15, 2015, at 10:00 AM.” (App. at 15) (emphasis in original).

       On June 29, 2015, the trial court received a “Motion to Pronounce Sentence”

       from Lindsey “without the approval of [his] attorney,” (id. at 196), objecting to

       the rescheduled date.


[21]   As a preliminary matter, Lindsey contends he objected to the rescheduled date.

       However, the trial court did not consider Lindsey’s pro se “Motion to

       Pronounce Sentence” and labeled it in the Chronological Case Summary as an

       ex parte communication. It was within the court’s discretion to do so. See

       Schepers v. State, 980 N.E.2d 883, 887 (Ind. Ct. App. 2012) (trial court was

       within its discretion to deny pro se motion filed by defendant represented by

       counsel). As Lindsey did not properly object to the rescheduling of his

       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 14 of 18
       sentencing hearing, his claim is waived. See Vandergriff, 653 N.E.2d at 1054

       (failure to object to the postponement of sentencing results in waiver of any

       error). Waiver notwithstanding, we conclude there was good cause for the brief

       postponement. See id. (clear statement of reason for rescheduling is sufficient to

       demonstrate good cause for delay).


                            V. Ineffective Assistance of Counsel
[22]   We begin our review of a claim of ineffective assistance of counsel with a strong

       presumption “that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.” Ward

       v. State, 969 N.E.2d 46, 51 (Ind. 2012) (internal citation omitted), reh’g denied.

       Trial counsel has wide latitude in selecting trial strategy and tactics, which will

       be subjected to deferential review. Id. “[A] defendant must offer strong and

       convincing evidence to overcome this presumption.” Harrison v. State, 707

       N.E.2d 767, 777 (Ind. 1999), reh’g denied, cert. denied sub nom Harrison v. Indiana,

       529 U.S. 1028 (2000).


[23]   An ineffective assistance challenge requires a defendant establish both deficient

       performance and resulting prejudice. Pontius v. State, 930 N.E.2d 1212, 1219

       (Ind. Ct. App. 2010), trans. denied. Performance is deficient when trial counsel’s

       representation falls below an objective standard of reasonableness causing

       errors sufficiently serious to amount to a denial of the defendant’s Sixth

       Amendment right to counsel. Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.

       2003), reh’g denied. Prejudice is established when “there is a reasonable


       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 15 of 18
       probability that, but for counsel’s unprofessional errors, the result of the

       proceeding would be different.” Id. If defendant does not establish prejudice,

       we need not evaluate trial counsel’s performance. Pontius, 930 N.E.2d at 1219.


[24]   Lindsey contends his “trial counsel did not fully investigate and present

       evidence at trial that cast doubts on the State’s theory.” (Br. of Appellant at

       33.) Specifically, Lindsey claims his trial counsel did not seek physical evidence

       such as a speeding ticket or dash camera recording to impeach evidence the

       State presented. Lindsey has not demonstrated any such evidence exists or

       explained how its inclusion in the evidence would have affected the outcome of

       his trial.


[25]   “[C]ounsel has a duty to make reasonable investigations or to make a

       reasonable decision that makes a particular investigation[] unnecessary.” Boesch

       v. State, 778 N.E.2d 1276, 1283 (Ind. 2002), reh’g denied. Demonstrating

       ineffective assistance of counsel often requires “going beyond the trial record to

       show what the investigation, if undertaken, would have produced,” Slusher v.

       State, 823 N.E.2d 1219, 1223 (Ind. Ct. App. 2005), because the prejudice prong

       is satisfied only when there is a reasonable probability the outcome would have

       been affected by the error. Id. However, when such a challenge is raised on




       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 16 of 18
       direct appeal, we are limited to a review of the trial record. 6 Pontius, 930

       N.E.2d at 1219.


[26]   Further, it seems Lindsey’s trial counsel used the lack of physical evidence as a

       strategy to attack the credibility of the State’s evidence, as trial counsel referred

       to this lack of evidence in opening statements:

                Because even though cars are equipment [sic] with video cameras
                and audio cameras, we don’t get to have that in this case. You
                don’t get to have that in this case. You don’t get to see how he
                looked. You don’t get to know if it’s the officer being
                unreasonable and exaggerating or if it’s the officer being truthful
                and right on the mark. You don’t get to make that independent
                determination which you should be able to do, because that
                evidence and that ability that [sic] exist [sic] in our county to
                have audio and video, but you don’t get that in this case, because
                the officer’s car’s video and audio didn’t work.


       (Tr. at 93-94.) Based on the limited evidence before us on appeal, we cannot

       find trial counsel ineffective.



                                                   Conclusion
[27]   The State presented sufficient evidence Lindsey committed Class D felony

       driving while intoxicated and the statements made by the State during closing




       6
         Lindsey’s direct appeal of his claim of ineffective assistance of counsel precludes raising the issue again if
       he pursues post-conviction relief. See Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999) (“when this Court
       decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-
       conviction proceedings”), reh’g denied, cert. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 17 of 18
       arguments were not prosecutorial misconduct. The trial court did not abuse its

       discretion when it gave the instruction regarding endangerment. The trial court

       showed good cause for rescheduling Lindsey’s sentencing. Finally, Lindsey has

       not demonstrated his trial counsel was ineffective. Accordingly, we affirm.


[28]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1508-CR-1086 | September 12, 2016 Page 18 of 18
