MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                            FILED
any court except for the purpose of                                    Jun 25 2019, 9:27 am

establishing the defense of res judicata,                                   CLERK
                                                                        Indiana Supreme Court
collateral estoppel, or the law of the                                     Court of Appeals
                                                                             and Tax Court
case.


APPELLANT PRO SE                                      ATTORNEYS FOR APPELLEE
Terry L. Lynem                                        Curtis T. Hill, Jr.
Carlisle, Indiana                                     Attorney General of Indiana
                                                      Justin F. Roebel
                                                      Supervising Deputy Attorney General
                                                      Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry L. Lynem,                                       June 25, 2019
Appellant-Petitioner,                                 Court of Appeals Case No.
                                                      18A-PC-1028
        v.                                            Appeal from the Marion Superior
                                                      Court
State of Indiana,                                     The Honorable Marc Rothenberg,
Appellee-Respondent.                                  Judge
                                                      The Honorable Amy J. Barbar,
                                                      Magistrate
                                                      Trial Court Cause No.
                                                      49G02-0812-PC-288157



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019                   Page 1 of 21
[1]   Terry L. Lynem appeals the denial of his petition for post-conviction relief. We

      affirm.


                                      Facts and Procedural History

[2]   The relevant facts and procedural history as discussed in Lynem’s direct appeal

      follow:

              The evidence most favorable to the convictions reveals that Gregory
              Arnold, Jr., owns Big Engine Entertainment, a recording studio in
              Indianapolis. On December 18, 2008, a number of people were at
              the studio, including some of Arnold’s relatives, friends, employees,
              and children. Arnold had known Lynem for about ten years.

              During the evening, Arnold’s sister Shontez Simmons was outside
              smoking a cigarette when she was approached and greeted by her
              cousins Antwane Walker and Antonio Walker. Antwane and
              Antonio went into the studio but came right back out. Soon
              thereafter, Antwane and Antonio returned, accompanied by
              Lynem, Curtis Stokes, Johnnie Stokes, and a man named Marcus
              whose last name is unknown. Johnnie was carrying a black trash
              bag.

              Once inside the studio, Antwane and Antonio went into Arnold’s
              office, where he was with Andrew Steele. Antwane and Antonio
              greeted Arnold, then asked to speak to Steele in the hallway. Once
              all three were in the hallway, Antonio pulled out a handgun, put it
              in Steele’s face, and said “Get down, you know what this is.” Tr. p.
              479. Meanwhile, at the same time Johnnie, who was also in the
              hallway, pulled an assault rifle out of the trash bag he was carrying
              and began firing it, also saying “Get down, you know what this is.”
              Id. at 480. Arnold managed to close the door to his office, after
              Antwane initially had prevented him from doing so. He then
              retrieved a handgun, opened his office door, and fired at Antonio.

              While this was occurring, Lynem and Marcus approached Big
              Engine employee Edriese Phillips. Lynem had been friends with

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 2 of 21
        Phillips for several years. Lynem pointed a revolver at Phillips’s
        stomach, and he and Marcus demanded that Phillips “[c]ome on
        with that s--- out of your pockets.” Tr. p. 402. When Phillips said
        he had nothing in his pockets, Lynem struck him in the face with
        the revolver, breaking Phillips’s glasses. Lynem or Marcus then
        reached into Phillips’s pockets and removed $200. 1

        Lynem, Antwane, Antonio, Curtis, Johnnie, and Marcus left the
        building, with Antwane firing towards it as he left. After the
        shooting stopped and people began calling 911, it was discovered
        that Big Engine employee Collin Moore had been shot, leaving him
        paralyzed. Police officers dispatched after the incident soon located
        Lynem, Antwane, and Curtis walking together down a street near
        the studio. Eight days after the incident, Johnnie called Arnold and
        offered him $5000 in exchange for Arnold agreeing not to “press
        charges.” Id. at 524.

        On December 22, 2008, the State charged Lynem with one count of
        Class A felony attempted robbery, one count of Class B felony
        robbery, eight counts of Class B felony attempted robbery, one
        count of Class C felony battery, one count of Class C felony
        criminal recklessness, and one count of Class A misdemeanor
        carrying a handgun without a license. The State later filed an
        allegation that Lynem is an habitual offender.

        A jury trial was held on March 9 through 13, 2009, for Lynem and
        four co-defendants. The trial court granted Lynem’s motion for a
        directed verdict on three of the Class B felony attempted robbery
        counts, and the jury found him guilty of the remaining counts.
        Lynem waived a jury trial on the habitual offender allegation, and
        the trial court found that he is an habitual offender. The trial court
        sentenced Lynem as follows: thirty years for Count I, the Class A
        felony attempted robbery conviction, enhanced by thirty years for
        the habitual offender finding; twenty years for Count II, the Class B
        felony robbery conviction, consecutive to Count I; ten years for



        1
         It is unclear from Phillips’s testimony whether Lynem or Marcus reached into his
        pockets and removed the money.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019               Page 3 of 21
              each of the five Class B felony attempted robbery convictions,
              concurrent with Count I; eight years for the Class C felony battery
              and criminal recklessness convictions, concurrent with each other
              but consecutive to Count II; and one year for the Class A
              misdemeanor carrying a handgun conviction, to be served
              consecutively. Thus, the aggregate sentence was eighty-nine years.

      Lynem v. State, No. 49A04-0905-CR-274, slip op. at 1-2 (Ind. Ct. App.

      December 17, 2009).


[3]   On direct appeal, Lynem raised several arguments including that the trial court

      acted improperly after being advised the jury had been exposed to potentially

      prejudicial extraneous information during trial, the court erred in denying his

      motion for mistrial on the basis it failed to admonish the jurors after questioning

      them, the evidence was insufficient to support his convictions, the court abused

      its discretion in failing to find a mitigating circumstance, and his aggregate

      sentence is inappropriate. See id. at 2-7. With respect to his sufficiency of the

      evidence claim, Lynem argued that Edriese Phillips’s testimony was incredibly

      dubious, inconsistent in some respects with statements he made to police, and

      varied from the testimony of some of the other witnesses in various particulars

      of precisely what occurred on the night of the incident. Id. at 5. We observed

      “it was not necessary for all of the State’s witnesses to agree on every detail of

      what occurred during what was unquestionably a chaotic incident involving

      many people” and “[w]hat is important is that Phillips’s trial testimony was

      internally consistent, and he adhered to his testimony directly implicating

      Lynem in the mass robbery, despite vigorous cross-examination.” Id. We also

      observed that Phillips’s testimony was not entirely uncorroborated; that

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 4 of 21
      Shontez Simmons testified “that she saw Lynem walk into the building with

      Antonio, Antwane, Curtis, Johnnie, and Marcus”; that, shortly thereafter,

      Simmons heard gunfire erupting and ran away from the studio; and, soon after

      the incident, police apprehended Lynem as he was walking in a group with

      Antwane and Curtis near the studio. Id. at 6. We noted that any

      inconsistencies in the evidence, or the weight to be given Phillips’s testimony,

      were for the jury to consider, held that there was sufficient evidence to support

      Lynem’s convictions, and affirmed. Id. at 6, 8.


[4]   Lynem filed a petition for post-conviction relief as amended in October 2015

      alleging that his trial counsel allowed the State to admit part of a key witness’s

      affidavit by stipulation of the parties; that the witness’s statement to police,

      however, provided additional exculpatory evidence for him; that his counsel

      was deficient in failing to introduce this additional evidence; and that his

      counsel entering into the stipulation without his consent amounts to her failure

      to call an important witness which may constitute deficiency. Lynem also

      argued that he received ineffective assistance of appellate counsel and that his

      counsel “should have made a wider sufficiency argument like those raised” by

      his co-defendants which resulted in the reversal of certain attempted robbery

      convictions. 2 Appellant’s Appendix Volume 2 at 51.




      2
       Curtis Stokes, Antonio Walker, and Johnnie Stokes, on direct appeal, challenged the sufficiency of the
      evidence as to their intent to rob certain victims. With respect to Curtis Stokes and Antonio Walker, on
      direct appeal different panels of this Court affirmed the attempted robbery conviction related to victim Collin
      Moore and reversed the attempted robbery convictions related to victims Gregory Arnold Jr. (“Arnold Jr.”),
      Fred Winfield, Shantell Williams, and Earnest Phillips. See Antonio Walker v. State, 49A02-0905-CR-432, slip

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019                      Page 5 of 21
[5]   The post-conviction court, at a hearing, mentioned that Lynem’s trial counsel

      had been ill and was not present. Lynem presented Collin Moore’s statement

      to police. 3 Lynem also presented the testimony of his appellate counsel on

      direct appeal, Attorney Matthew Anglemeyer. When asked why he limited his

      sufficiency of the evidence argument “to only one witness, Edriese Phillips,”

      Attorney Anglemeyer testified “that, at that time, was what I perceived to be

      your best chance of success.” Supplemental Transcript Volume II at 23-24. He




      op. at 7-10 (Ind. Ct. App. April 13, 2010) (holding “[t]he commands by Walker and Johnnie Stokes to ‘Get
      down. You know what this is,’ are without more too ambiguous to support a reasonable inference that
      Walker and his co-defendants intended to rob each of the alleged victims” but finding the fact that Moore
      “was directly ordered to ‘get down’ supports a reasonable inference that Walker and his co-defendants
      intended to rob him”), trans. denied; Curtis Stokes v. State, 919 N.E.2d 1240, 1246-1248 (Ind. Ct. App. 2010)
      (holding Antonio Walker’s and Johnnie Stokes’s “commands, ‘Get down. You know what this is,’ are,
      without more, too ambiguous to support a reasonable inference that Stokes and his codefendants intended to
      rob each of the alleged attempted robbery victims” but holding the fact that Moore “was singled out and
      directly ordered to ‘get down’ supports a reasonable inference that the perpetrators intended to rob him, but
      were interrupted when gunfire erupted” and affirming the conviction for the attempted robbery of Moore),
      trans. denied. With respect to Johnnie Stokes, another panel of this Court reversed the attempted robbery
      convictions related to Arnold Jr., Winfield, Shantell Williams, and Earnest Phillips and, in a split decision,
      also reversed the conviction related to victim Moore. See Johnnie Stokes v. State, 922 N.E.2d 758, 764-766
      (Ind. Ct. App. 2010) (agreeing with Curtis Stokes that the evidence was insufficient to support four of the five
      class B felony attempted robbery convictions, concluding that the perpetrators lacked the requisite intent to
      rob those four alleged victims, and also vacating Johnnie’s conviction for the attempted robbery of Moore,
      finding the evidence did not support a reasonable inference that the perpetrators intended to specifically rob
      him), trans. denied; see also Johnnie Stokes, 922 N.E.2d at 766-767 (Vaidik, J., dissenting in part and writing that
      she believed the evidence was sufficient to affirm the conviction for the attempted robbery of Moore). We
      note that Antwane Walker did not challenge the sufficiency of the evidence on direct appeal, and this Court
      affirmed all of his attempted robbery convictions. Antwane Walker v. State, No. 49A02-0904-CR-344 (Ind. Ct.
      App. December 8, 2009). As we discuss later in this decision, we subsequently affirmed the denial of
      Antwane Walker’s petition for post-conviction relief. Antwane Walker v. State, No. 49A02-1112-PC-1173
      (Ind. Ct. App. July 19, 2012), trans. denied.
      3
        Petitioner’s Exhibit 2 contains the transcript of an interview of Moore by a detective. Moore indicated that
      he did not know how many men in total were involved, he did not recognize any of them, and they had guns
      and he was trying not to look at them. The interview transcript also reveals that Moore was shown a photo
      array and asked if he recognized anyone, stated “I recognize a lot of people . . . but I’m saying I don’t . . .
      remember seeing them there,” stated that he knew “number six” and “[w]e pretty good friends,” and when
      asked “[b]ut you don’t recall if he was there or not,” answered “[n]o I don’t remember seeing him at all.”
      Petitioner’s Exhibit 2 at 6-7. The name “Terry” is written on the interview transcript and appears to indicate
      that Moore was referencing Lynem. Id. at 6.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019                          Page 6 of 21
      testified: “I spoke with your trial counsel, . . . and in that conversation she and I

      agreed that Mr. Phillips’ testimony, since it vacillated quite a bit and had some

      internal inconsistencies, that Incredible Dubiosity would be appropriate and

      proper for him. As to any other insufficient claims, I didn’t believe that those

      would have been as meritorious nor did they have the chance for success on

      appeal as did . . . attacking Mr. Phillips’ testimony.” Id. at 24-25. When asked

      “[s]o you’re saying his was more stronger than . . . the other . . . arguments on

      anything,” he replied “[c]orrect.” Id. at 24. Attorney Anglemeyer further

      testified that “the testimony of one witness . . . is sufficient to convict you,”

      “that person was Edriese Phillips and that’s why I chose to attack that person’s

      testimony,” “[s]imply because other witnesses did not testify that you were

      there doesn’t mean that you were not there,” “[o]ne witness placed you there,”

      “[t]hat witness was Edriese Phillips,” “[t]hat’s why I chose to attack his

      testimony as incredibly dubious because if his testimony was incredibly

      dubious, then the only witness who placed you at that scene was incorrect and

      your convictions would be overturned,” and “[t]hat’s why I chose that specific

      issue.” Id. at 26. Lynem asked Attorney Anglemeyer if he was familiar with

      the direct appeal opinions of his co-defendants, and Attorney Anglemeyer

      replied affirmatively. Lynem then asked why he did not raise the issues that

      were successful for his co-defendants in their appeals, and Attorney

      Anglemeyer answered “I don’t recall that. I’m sorry.” Id. at 29.


[6]   The post-conviction court denied Lynem’s petition. It noted that Lynem was

      unable to procure the testimony of trial counsel because of her ongoing health


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 7 of 21
      issues. (70) It found that Moore was unable to testify at trial; “[i]n lieu of his

      live testimony, the trial counsels and the State entered into a joint stipulation

      regarding his testimony” admitted at trial as State’s Exhibit 75; the stipulation

      indicated Moore would have testified that he was present at the incident at the

      studio, during which he was ordered to the ground, heard multiple gunshots,

      and suffered a gunshot wound; and the stipulation also provided that no

      property was taken from Moore and he was unable to identify any of the people

      who perpetrated the crime. Appellant’s Appendix Volume 2 at 71. The court

      found “it is apparent that entering into this stipulation was trial strategy that

      was pursued by all five attorneys who represented the defendants in the case.”

      Id. It found the stipulation was “a reasonable trial strategy which mitigated as

      much risk as was possible in the circumstances,” the record indicates Moore

      was unavailable “primarily due to health issues directly stemming from the

      crimes,” and “[f]rom a defense standpoint, . . . the stipulation as entered,

      presented his probable testimony by which he averred to the obvious fact that

      he was injured in the incident, but while also acknowledging that he was unable

      to identify any of the [sic] also while removing the specter of possibly emotional

      impact of video testimony from a paralyzed crime victim.” Id. at 72. It also

      found the only direct evidence the stipulation provided could likely have been

      obtained through other witnesses such as medical service providers.


[7]   With respect to Lynem’s claim of ineffective assistance of appellate counsel, the

      post-conviction court noted that the background involves appellate decisions in

      the cases of four of Lynem’s co-defendants, that this Court had found


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 8 of 21
insufficient evidence on four counts in two of his co-defendants’ cases, 4 that this

Court had found there was insufficient evidence on five counts in one of the co-

defendant’s cases, 5 and that, in one of the co-defendant’s cases, this Court, on

appeal from the denial of a petition for post-conviction relief, found no

ineffective assistance of appellate counsel for failure to raise an insufficiency of

the evidence claim. 6 The court found that Lynem’s appellate counsel testified

“that his decision on the issue he raised was a considered, strategic decision

made after reviewing the record, consulting with trial counsel, and reviewing

the applicable law” and he “considered the argument regarding all of the

robbery victims . . . to be not as meritorious.” Id. at 74-75. It found: “Given

that 3 of 4 panels of the Court of Appeals have differed in their analyses of the

ineffective issue, 7 it is a strong indicator that the unraised issue is not so strong

or obvious as to require a reversal or new trial. And of those panels, only one

found insufficiency on the count that would make any difference in [Lynem’s]

sentence.” Id. at 75. The court concluded, “[b]ased on the record available at

the time of the appeal, appellate counsel’s choice of issues to present on appeal




4
  See Antonio Walker, 49A02-0905-CR-432; Curtis Stokes, 919 N.E.2d 1240. The post-conviction court found
that, because the sentences for the vacated counts had been ordered to be served concurrent with other
counts, there was no impact on the sentences in these cases.
5
  See Johnnie Stokes, 922 N.E.2d 758. The post-conviction court noted that Johnnie Stokes’s sentence was
reduced from seventy-four years to forty-four years.
6
    See Antwane Walker, No. 49A02-1112-PC-1173.
7
    It appears the post-conviction court intended to reference the sufficiency of the evidence issue.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019                           Page 9 of 21
      was a reasonable exercise of judgment which did not fall below the professional

      norm.” Id.


                                                   Discussion

[8]   Before addressing Lynem’s allegations of error, we observe that Lynem is

      proceeding pro se. Such litigants are held to the same standard as trained

      counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

      We also note the general standard under which we review a post-conviction

      court’s denial of a petition for post-conviction relief. The petitioner in a post-

      conviction proceeding bears the burden of establishing grounds for relief by a

      preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

      Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

      conviction relief, the petitioner stands in the position of one appealing from a

      negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

      the judgment unless the evidence as a whole unerringly and unmistakably leads

      to a conclusion opposite that reached by the post-conviction court. Id. “A post-

      conviction court’s findings and judgment will be reversed only upon a showing

      of clear error – that which leaves us with a definite and firm conviction that a

      mistake has been made.” Id. In this review, we accept findings of fact unless

      clearly erroneous, but we accord no deference to conclusions of law. Id. The

      post-conviction court is the sole judge of the weight of the evidence and the

      credibility of witnesses. Id.


[9]   Lynem claims his trial counsel and appellate counsel rendered ineffective

      assistance. Generally, to prevail on a claim of ineffective assistance of counsel
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 10 of 21
       a petitioner must demonstrate both that his counsel’s performance was deficient

       and that the petitioner was prejudiced by the deficient performance. French v.

       State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S.

       668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient

       if it falls below an objective standard of reasonableness based on prevailing

       professional norms. Id. 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. Id. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

       Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at

       824. Most ineffective assistance of counsel claims can be resolved by a

       prejudice inquiry alone. Id.


[10]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). Counsel’s performance is

       presumed effective, and a defendant must offer strong and convincing evidence

       to overcome this presumption. Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).

       Evidence of isolated poor strategy, inexperience, or bad tactics will not support

       a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206,

       1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438 (1997).

       “Reasonable strategy is not subject to judicial second guesses.” Burr v. State,

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 11 of 21
       492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly speculate as to what may

       or may not have been an advantageous trial strategy as counsel should be given

       deference in choosing a trial strategy which, at the time and under the

       circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). In

       order to prevail on a claim of ineffective assistance due to the failure to object,

       the defendant must show a reasonable probability that the objection would have

       been sustained if made. Passwater v. State, 989 N.E.2d 766, 772 (Ind. 2013).


[11]   We apply the same standard of review to claims of ineffective assistance of

       appellate counsel as we apply to claims of ineffective assistance of trial counsel.

       Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,

       531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel

       claims fall into three categories: (1) denial of access to an appeal; (2) waiver of

       issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710,

       724 (Ind. 2013). To show that counsel was ineffective for failing to raise an

       issue on appeal thus resulting in waiver for collateral review, the defendant

       must overcome the strongest presumption of adequate assistance, and judicial

       scrutiny is highly deferential. Id. To evaluate the performance prong when

       counsel waived issues upon appeal, we apply the following test: (1) whether the

       unraised issues are significant and obvious from the face of the record and (2)

       whether the unraised issues are clearly stronger than the raised issues. Id. If the

       analysis under this test demonstrates deficient performance, then we evaluate

       the prejudice prong which requires an examination of whether the issues which




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 12 of 21
       appellate counsel failed to raise would have been clearly more likely to result in

       reversal or an order for a new trial. Id.


       A. Trial Counsel


[12]   Lynem asserts that his trial counsel was ineffective for entering into the

       stipulation admitted as State’s Exhibit 75 and that the stipulation withheld

       additional exculpatory evidence, including the fact that Moore picked Lynem

       out of a photo array as not being present at the studio. The State maintains that

       Moore’s live testimony would have exposed the jury to the harsh reality of his

       paralysis and that, under these circumstances, stipulating to his testimony was a

       reasonable trial strategy. It also maintains Lynem did not show that he

       disapproved of or was prejudiced by the stipulation and that, as Moore did not

       identify him as a perpetrator, the only incriminatory evidence was that Moore

       suffered very serious injuries, which could have been presented without the

       stipulation through other witnesses. The State further argues there is no

       indication that it would have agreed to include any additional statements from

       Moore’s police statement in the stipulation and that, even if admitted, the

       additional statements would have carried little exculpatory value in part

       because Moore did not know how many people were involved and had

       minimal opportunity to view the perpetrators.


[13]   State’s Exhibit 75 consists of an Agreed Stipulation as to Fact and Admissibility

       and provides that the State’s witness Collin Moore was unavailable to testify

       but that his testimony would have been as follows: he was present “during an


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 13 of 21
       incident where individuals he was unable to identify entered the building and

       engaged in gunfire”; during the incident “he was ordered to get on the ground

       by individuals whom he was unable to identify”; he heard multiple gunshots; he

       suffered a gunshot wound to his lower left abdomen, resulting in paralysis of

       both of his legs; and no property was taken from his person. State’s Trial

       Exhibit 75. To the extent Lynem points to statements Moore made during an

       interview with a detective, he does not establish that the State would have

       agreed to include any particular statements from the interview in the stipulation

       or assert another basis for the admission of the statements into evidence. To the

       extent he asserts his counsel should not have agreed to the stipulation, he does

       not argue that Moore’s statement in the stipulation that he was unable to

       identify the perpetrators was incorrect, and he does not show how he was

       prejudiced by the admission of the stipulation. He has not established that he

       received ineffective assistance of trial counsel.


       B. Appellate Counsel


[14]   Lynem contends his appellate counsel was ineffective in his decision not to

       broaden the insufficiency of the evidence argument as to all of his attempted

       robbery charges and that, as in his co-defendants’ cases, the State failed to show

       he had intent to rob each individual present in the building. The State

       maintains he is not entitled to relief and that Attorney Anglemeyer presented a

       plausible argument in support of the claim that Edriese Phillips provided

       inconsistent and uncorroborated testimony. It states that three of his co-

       defendants successfully challenged the sufficiency of the evidence for the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 14 of 21
       attempted robbery convictions involving victims who were not directly

       threatened but that “none of the co-defendants received a sentencing reduction

       with regard to those counts because all defendants received sentences ordered

       concurrent with the convictions related to Moore” and that “[o]nly co-

       defendant Johnnie Stokes received a sentence reduction because one panel also

       found insufficient evidence of intent to rob Moore even though Moore was

       ordered to the ground and shot during the attempted robbery.” Appellee’s Brief

       at 19. The State maintains that “the only other panel which considered whether

       competent representation required raising these issues” found that Lynem’s co-

       defendant Antwane Walker was not entitled to relief. Id. (citing Antwane

       Walker, No. 49A02-1112-PC-1173). It argues “[t]he same result should be

       reached here as Attorney Anglemeyer also reasonably believed such a claim

       would have failed.” Id. at 20. It also argues, “[m]oreover, a review of the trial

       transcript does support an argument that the co-defendants intended to rob

       everyone at the recording studio, but abandoned that plan when one of the

       victims produced a gun and started shooting,” “[s]uch an inference is supported

       by the evidence that the co-defendant[s] were working together and were

       robbing different people in the building,” and “[t]he jury could reasonably find

       that [Lynem] and his co-defendants would have robbed the other persons as

       well, had they not been thwarted.” Id. at 20-21.


[15]   Antwane Walker was one of Lynem’s co-defendants and was convicted, like

       Lynem, of multiple counts of attempted robbery. In Antwane Walker, No.

       49A02-1112-PC-1173, Antwane appealed from the denial of his petition for


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 15 of 21
       post-conviction relief and argued that, since this Court found insufficient

       evidence for three of his co-defendants, his counsel was necessarily ineffective

       because she did not raise the issue on direct appeal. We observed that only one

       of the co-defendants, Johnnie Stokes, had a positive outcome on appeal in

       terms of obtaining reversal of a count which resulted in a reduction of his

       sentence. We found that the negative outcomes of the other co-defendants as to

       that count are an indication that a sufficiency of evidence claim was not a

       strong or obvious claim to present on direct appeal. Further, we observed that

       Antwane’s appellate counsel testified that she did not raise the sufficiency claim

       because she believed Antwane and his co-defendants were working as two

       groups operating together and believed the perpetrators were accomplices and

       thus were jointly and severally liable. His appellate counsel testified that she

       was under the impression that all of the alleged victims were being robbed

       during the incident as opposed to just one victim being robbed and the other

       victims just being present.


[16]   We held that, based on the record available at the time of appeal, appellate

       counsel’s choice of issues to present on direct appeal was a reasonable exercise

       of judgment which did not fall below the professional norm, and we noted that

       this Court may not look back in hindsight and speculate as to whether raising

       the sufficiency of evidence claim would have presented a more favorable

       outcome. We concluded that Antwane’s appellate counsel’s decisions did not

       fall below any objective standard of reasonableness and that he was not denied

       effective assistance of counsel.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 16 of 21
[17]   Like in Antwane Walker, No. 49A02-1112-PC-1173, we do not find Lynem’s

       argument that he received ineffective assistance from his appellate counsel to be

       persuasive. Attorney Anglemeyer testified that he believed that focusing the

       sufficiency argument on Edriese Phillips’s testimony was Lynem’s best chance

       of success because he was the witness who identified him as one of the

       perpetrators. Attorney Anglemeyer also testified: “As to any other insufficient

       claims, I didn’t believe that those would have been as meritorious nor did they

       have the chance for success on appeal as did . . . attacking Mr. Phillips’

       testimony.” Supplemental Transcript Volume II at 24-25. Further, we note

       that, at the time Attorney Anglemeyer filed an appellant’s brief, this Court had

       not yet issued its decisions in the direct appeals of Lynem’s co-defendants.


[18]   In addition, we observe that, even if Lynem’s convictions for the attempted

       robbery of Arnold Jr., Winfield, Williams, and Earnest Phillips had been

       vacated, his aggregate sentence would not have been impacted. As mentioned

       above, see supra at 5 n.2, while a reversal of his conviction for the attempted

       robbery of victim Collin Moore would impact his aggregate sentence, we

       observe that two panels of this Court on direct appeal, in Curtis Stokes and

       Antonio Walker, affirmed the attempted robbery convictions related to Moore,

       see Antonio Walker, 49A02-0905-CR-432, slip op. at 7-10; Curtis Stokes, 919

       N.E.2d at 1246-1248, that only one panel of this Court, in Johnnie Stokes,

       reversed the conviction related to Moore, see Johnnie Stokes, 922 N.E.2d at 764-

       766, and that Chief Judge Vaidik dissented in Johnnie Stokes, believing the

       evidence was sufficient to affirm the conviction related to Moore. See Johnnie

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 17 of 21
       Stokes, 922 N.E.2d at 766-767 (Vaidik, C.J., dissenting). Thus, only two of the

       nine judges on the three panels of this Court which addressed the issue voted to

       reverse the attempted robbery conviction related to victim Moore.


[19]   There is no distinction between the responsibility of a principal and an

       accomplice. Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). A person who

       knowingly or intentionally aids, induces, or causes another person to commit

       an offense commits that offense. Ind. Code § 35-41-2-4. The factors generally

       considered to determine whether a person has aided another in the commission

       of a crime include: presence at the scene of the crime, companionship with

       another engaged in a crime, failure to oppose the commission of the crime, and

       the course of conduct before, during, and after the occurrence of the crime.

       Wieland v. State, 736 N.E.2d 1198, 1202 (Ind. 2000). When evidence is

       challenged as insufficient, we look to the evidence and the reasonable inferences

       therefrom that support the verdict and do not reweigh the evidence. Jordan v.

       State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Because intent is a mental

       function and usually must be determined from a person’s conduct and resulting

       reasonable inferences, the element of intent may properly be inferred from

       circumstantial evidence. Beatty v. State, 567 N.E.2d 1134, 1139 (Ind. 1991).


[20]   The evidence at trial established that Lynem and his co-defendants entered the

       studio building. Arnold Jr., Fred Winfield, Shantell Williams, and Andrew

       Steele were located in an office in the studio building when Antonio and

       Antwane Walker entered the office, and Earnest Phillips was located in a

       recording booth connected to the office. Antonio asked to talk to Steele in the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 18 of 21
       hallway. Once Steele was in the hallway, Antonio pulled out a semi-automatic

       handgun, placed it forcefully in Steele’s face and said: “Get down, you know

       what this is.” Trial Transcript at 479. Johnnie Stokes, located in the hallway or

       main office area outside the office, repeated Antonio’s command by saying

       “Get down, you know what this is,” and pulled an assault rifle out of the black

       trash bag he was carrying. Id. at 480. Arnold Jr. interpreted Johnnie Stokes’s

       command to be directed toward him. When asked if the threat was made to

       him, Arnold Jr. answered “[i]t had to be,” and when asked if he knew that for

       sure, he replied “yes, it was.” Id. at 510. When asked if the commands “could

       have been directed to anybody” in his office, Arnold Jr. replied “I’m

       accountable for them,” and when asked if he knew for sure if Johnnie Stokes

       made the statement to him, he replied “I took it towards me, yes.” Id. at 511.


[21]   Once he heard the commands, Arnold Jr. “jumped out of the chair trying to

       slam . . . close the door,” “Antwane Walker was wedged into between the door,

       from this side to that side,” and Arnold Jr. heard a gunshot coming from the

       main office area, “forcefully closed the door,” and “wedged [him]self on the

       door.” Id. at 481-482. Arnold Jr. then heard additional gunshots. Meanwhile,

       Edriese Phillips saw Johnnie Stokes with a “long rifle with a banana clip” and

       testified that, “by the time I saw that, Terry and Marcus had snatched me to the

       side against this wall,” Lynem pointed a revolver at his stomach, the men

       demanded his money, and Lynem struck him with the gun. Id. at 401. As the

       men were taking money from him, Edriese heard gunfire which “was in the




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019   Page 19 of 21
       hallway” and “was real close, like . . . it was fired on the side of [his] head.” Id.

       at 432.


[22]   In addition, one of Arnold Jr.’s children testified “they said ‘Everybody get

       down, I ain’t playing.’” Id. at 327 (emphasis added). Further, Shantell

       Williams testified that she heard the command: “Ya’ll know what this is.

       Everybody get down.” Id. at 372 (emphases added). The evidence also shows

       that Moore was directly ordered to the ground and suffered a gunshot wound to

       his lower left leg. At some point, Arnold Jr. opened the office door and, using

       his own handgun, shot at Antonio, and the perpetrators left the building.

       Edriese testified that he heard more than five gunshots, that he saw Antwane

       running backwards out of the building and firing as he was running, and that

       the hallway after the gunfire stopped was “real smoky, real cloudy.” Id. at 406.


[23]   Based upon the record, we cannot find that Lynem has offered convincing

       evidence to overcome the strongest presumption of adequate assistance or has

       shown that it was unreasonable for his appellate counsel to conclude that the

       evidence supports at least a reasonable inference that the co-defendants had

       intent to rob Arnold Jr., Winfield, Williams, Earnest Phillips, and Moore, and

       accordingly we conclude that Lynem’s appellate counsel’s decisions did not fall

       below an objective standard of reasonableness. 8 See Washington v. State, 517




       8
        We acknowledge as discussed above that different panels of this Court reversed certain attempted robbery
       convictions of Curtis Stokes, Antonio Walker, and Johnnie Stokes. However, we note that each of those
       decisions focused primarily on the command “Get down, you know what this is” and the fact that that
       command was, without more, too ambiguous to support the inference that the co-defendants intended to rob

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019                Page 20 of 21
       N.E.2d 77, 79 (Ind. 1987) (holding the evidence was sufficient to show the

       defendant performed a substantial step toward commission of a robbery where

       the defendant reached for a gun hidden in his jacket and it could be inferred the

       defendant would have robbed the victims had he not been unexpectedly

       stopped when the victims fought back by grabbing him and striking him on the

       head with a cane). Lynem has not established that his appellate counsel

       rendered ineffective assistance.


                                                      Conclusion

[24]   For the foregoing reasons, we affirm the denial of Lynem’s petition for post-

       conviction relief.


[25]   Affirmed.


       May, J., and Mathias, J., concur.




       certain victims. See Antonio Walker, 49A02-0905-CR-432, slip op. at 7-10; Curtis Stokes, 919 N.E.2d at 1246-
       1248; Johnnie Stokes, 922 N.E.2d at 764-766. Moreover, as discussed above, our review of the trial testimony
       supporting the verdicts reveals evidence in addition to the arguably ambiguous command. In particular,
       testimony was before the jury that the co-defendants commanded “Everybody get down” and “Ya’ll know
       what this is. Everybody get down.” Trial Transcript at 327, 372 (emphases added). Further, there was
       evidence that Arnold Jr. interpreted Johnnie Stokes’s command to be directed toward him and that Moore
       was commanded to get down as noted in Curtis Stokes and Antonio Walker. Lynem’s appellate counsel on
       direct appeal, in reviewing this evidence in light of the record as a whole, could have reasonably concluded
       that this Court would find that the jury could reasonably infer that the co-defendants, and Lynem as a
       principal or accomplice, had the intent to work together to commit the various attempted robberies as alleged
       and that the evidence supported the challenged convictions.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019                   Page 21 of 21
