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
                                                              Jun 20 2014, 10:27 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



APPELLANT PRO SE:                                    ATTORNEYS FOR APPELLEE:

DENON TAYLOR                                         GREGORY F. ZOELLER
Carlisle, Indiana                                    Attorney General of Indiana

                                                     ELLEN H. MEILAENDER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DENON TAYLOR,                                        )
                                                     )
        Appellant-Petitioner,                        )
                                                     )
               vs.                                   )      No. 49A04-1305-PC-265
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Respondent.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                           Cause No. 49G04-9212-CF-168647


                                            June 20, 2014

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Denon Taylor appeals the post-conviction court’s denial of his petition for post-

conviction relief. We affirm.

                                          Issues

      Taylor raises two issues, which we restate as:

             I.     whether he was denied the effective assistance of trial
                    counsel; and

             II.    whether he was denied the effective assistance of
                    appellate counsel.

                                          Facts

      The facts, as stated in Taylor’s direct appeal, follow:

                    Denon Taylor was convicted by a jury of murdering
             his wife, Dorthea Taylor. Dorthea was killed in the early
             morning hours of December 6, 1992, outside the Indianapolis
             apartment building where she had taken an apartment the day
             before. She had filed for divorce on September 29, 1992, and
             had obtained a restraining order against Taylor on November
             23, 1992, based on his physical abuse and threats to kill her.

                    Cecil Holly also had an apartment in Dorthea’s new
             building. On the evening before her death, Dorthea was to
             attend an office Christmas party. She lent her car to Holly
             who dropped her off at a friend’s house to proceed to the
             party. Holly then picked up his youngest brother and a friend.
             As the three were driving in downtown Indianapolis, they
             coincidentally passed Taylor, who recognized Dorthea’s car
             and pursued it. At one stop, Taylor initiated a verbal
             exchange with Holly and challenged Holly’s use of Dorthea’s
             car. At a second stop Holly could see Taylor possessed a
             handgun. With Taylor following, Holly then drove to a
             nearby nightclub where he knew off-duty police served as
             security guards and informed a guard in the parking lot of the
             club that Taylor had a handgun. The officer searched Taylor,
             but found no gun on his person. The guard then told Holly to

                                             2
             leave while he spoke with Taylor. Holly returned to his home
             where Taylor telephoned him three times within an hour.
             Among other things, Taylor said that if he could not have
             Dorthea, nobody could, and that he would kill her. After the
             last of the calls, Holly received a page from Dorthea and went
             to pick her up at her friend’s house.

                    In the meantime, after the last of his calls to Holly,
             Taylor telephoned Alif Rogers, a friend, and asked him to
             come over to Taylor’s home, which Rogers did. When
             Rogers arrived, Taylor got in the car, and told Rogers to drive
             to Dorthea’s apartment building. On arrival, the two drove
             around the parking lot looking for Dorthea’s car. When they
             did not find the car, at Taylor’s instruction, Rogers backed
             into a parking space facing the apartment house to await
             Dorthea’s return.

                    Holly and Dorthea arrived in Dorthea’s car about thirty
             or forty minutes later. Once more at Taylor’s instruction,
             Rogers followed the car until Holly parked and Holly and
             Dorthea proceeded on foot toward the building. At that point
             Taylor jumped from Rogers’ car and ran toward them yelling,
             “Yeah, yeah I got you now. I got you now, bitch. You’re
             going with me.” Dorthea refused, and Taylor struck her with
             a gun he had removed from his waistband. Dorthea told
             Holly to call the police and, as Holly ran, Taylor fired a shot
             at Holly. Holly first dove for the ground, then fled to the
             building. From the building Holly could see Taylor drag
             Dorthea by her hair and hear both continuing to shout.
             Finally, Taylor first threatened to kill Dorthea if she did not
             come with him, then pulled her head up to the pistol and
             fired.

                     The foregoing is largely taken from Holly’s testimony.
             Rogers’ version of these events is that he stayed in his car
             listening to a loud tape after Taylor got out to confront Holly
             and Dorthea. At the time he removed the tape to listen to the
             other side, he heard a muffled gunshot. As he turned to look,
             Taylor jumped in the car. Rogers asked Taylor if he was
             trying to scare Dorthea. Taylor responded that he had shot
             her.

Taylor v. State, 681 N.E.2d 1105, 1107-08 (Ind. 1997).

                                           3
       After his June 1994 trial, Taylor was convicted of the murder of Dorthea, Class A

felony attempted murder of Holly, and Class A misdemeanor carrying a handgun without

a license.   He received an aggregate sentence of 100 years in the Department of

Correction. In his direct appeal, Taylor raised five issues: (1) whether the trial court

committed reversible error in its instruction that “lying in wait” can be proof of specific

intent to commit murder; (2) whether the instruction’s “emphasis on lying in wait”

impermissibly shifted the burden of persuasion to the defendant as to intent; (3) whether

the presence in the jury room of a withdrawn death sentence request constituted

reversible error; (4) whether the convictions were supported by sufficient evidence; and

(5) whether the sentence imposed was manifestly unreasonable. Id. at 1107. On June 12,

1997, our supreme court rejected Taylor’s arguments and affirmed the convictions.

       Eventually, Taylor filed a petition for post-conviction relief raising two issues: (1)

whether trial counsel was ineffective for failing to “object to the improper jury

instructions under” Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991); and (2) whether

appellate counsel was ineffective because, “[d]uring the trial, one of the central issues

was Defendant’s intent to commit Attempted Murder yet the jury was provided with

instructions that allowed them to find Defendant guilty without the required specific

mens rea, in clear violation of Spradlin.” App. pp. 98-99. After a hearing, the post-

conviction court entered findings of fact and conclusions thereon denying Taylor’s

petition. Taylor now appeals.




                                             4
                                         Analysis

       Taylor argues that the post-conviction court erred by denying his petition. A court

that hears a post-conviction claim must make findings of fact and conclusions of law on

all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009)

(citing Ind. Post-Conviction Rule 1(6)). “The findings must be supported by facts and the

conclusions must be supported by the law.” Id. Our review on appeal is limited to these

findings and conclusions. Id. Because the petitioner bears the burden of proof in the

post-conviction court, an unsuccessful petitioner appeals from a negative judgment. Id.

(citing P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that

the evidence as a whole ‘leads unerringly and unmistakably to a conclusion opposite to

that reached by the trial court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind.

2001), cert. denied). Under this standard of review, “[we] will disturb a post-conviction

court’s decision as being contrary to law only where the evidence is without conflict and

leads to but one conclusion, and the post-conviction court has reached the opposite

conclusion.” Id.

       Taylor argues that both his trial counsel and appellate counsel were ineffective.

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), cert. denied. To prevail on a claim of ineffective

assistance of counsel, a petitioner must demonstrate both that his or her counsel’s

performance was deficient and that the petitioner was prejudiced by the deficient

performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v.

                                             5
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied. A counsel’s

performance is deficient if it falls below an objective standard of reasonableness based on

prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d

1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved by

a prejudice inquiry alone. Id.

                        I. Ineffective Assistance of Trial Counsel

       Taylor argues that his trial counsel was ineffective for failing to object to jury

instructions on attempted murder that allegedly violated Spradlin. Taylor was tried in

1994. In 1991, our supreme court had held that an attempted murder instruction “must

inform the jury that the State must prove beyond a reasonable doubt that the defendant,

with intent to kill the victim, engaged in conduct which was a substantial step toward

such killing.” Spradlin, 569 N.E.2d at 950. The instructions given at Taylor’s trial

provided:

                     A person attempts to commit a crime when he
              knowingly or intentionally engages in conduct that constitutes
              a substantial step toward the commission of the crime.

                   An attempt to commit a crime is a felony or
              misdemeanor of the same class as the crime attempted.


                                             6
                      The crime of murder is defined by statute as follows:
                      A person who knowingly or intentionally kills another
                 human being commits murder.

                       To convict the defendant of attempt murder, the State
                 must have proved each of the following elements:

                          The defendant Denon A. Taylor
                          1. knowingly or intentionally
                          2. engaged in conduct with intent to kill Cecil B. Holly
                          by knowingly shooting a deadly weapon, a handgun, at
                          and toward the person of Cecil B. Holly
                          3. which conduct constitutes a substantial step toward
                          the knowing or intentional killing of another human
                          being.

                        If the State failed to prove each of the elements beyond
                 a reasonable doubt, the defendant should be found not guilty.

                       If the State did prove each of the elements beyond a
                 reasonable doubt, then you should find the defendant guilty of
                 attempt murder, a class A felony.

R. at 176.

        According to Taylor, the instruction was erroneous because it included the mens

rea of “knowingly” several times.1 Taylor acknowledges that the instruction included a

reference to “intent to kill,” but he argues that including “knowingly” reduced “the

requisite mens rea on which a jury could convict Taylor for attempted murder.”




1
  The post-conviction court found that the use of “knowingly” in the instruction was not improper at the
time of Taylor’s trial and found no Spradlin violation. App. pp. 159-60. On appeal, the State makes no
argument that the use of “knowingly” was permissible at the time of the trial. Rather, the State argues
that, under Greenlee v. State, 655 N.E.2d 488, 491 (Ind. 1995), and Price v. State, 591 N.E.2d 1027, 1029
(Ind. 1992), “the mere presence of a reference to a ‘knowing’ state of mind does not necessarily create
error, even if it is not completely correct under Spradlin, so long as the jury is still clearly told of the need
to find that the defendant acted with the intent to kill.” Appellee’s Br. p. 18. We need not address this
issue because we conclude that, even if the instruction was erroneous, Taylor was not prejudiced by his
trial counsel’s failure to object to it.
                                                       7
Appellant’s Br. p. 12. Taylor contends that his trial counsel’s failure to object to the

instruction was deficient and that he was prejudiced by the failure.

       We need not address whether trial counsel’s performance was deficient because

we conclude that Taylor was not prejudiced by the alleged deficiency. In Ramsey v.

State, 723 N.E.2d 869, 871 (Ind. 2000), our supreme court addressed an attempted

murder instruction that included a “knowingly” mens rea but also stated that the

defendant had to have a “specific intent to kill.” The court held that, although the trial

court should not have included the word “knowingly” in the instruction, the instruction

properly mentioned the “specific intent to kill” both as an element in the charging

instrument and as an element that the State was required to prove beyond a reasonable

doubt. Ramsey, 723 N.E.2d at 872. The court found that the jury instructions, taken as a

whole, sufficiently informed the jury of the State’s burden of proving that the defendant

specifically intended to kill the victim. Id. at 873. The reversal of an attempted murder

conviction, despite a Spradlin error, is not required if either the intent of the perpetrator is

not a central issue at trial or the instructions as a whole sufficiently suggested the

requirement of the intent to kill. Id. at 872 n.4.

       Here, in addition to the final instruction on attempted murder that mentioned the

“intent to kill” requirement, the charging information, which was read to the jury as part

of the preliminary instructions, also alleged that Taylor had the “intent to kill” Holly. R.

at 136. Finally, the jury was also instructed that:

                    The intent to kill may be inferred from the use of a
              deadly weapon in a manner likely to cause serious bodily


                                               8
                  injury or death and may be inferred from discharging a
                  weapon in the direction of the victim.

                         The intent to kill can be found from the acts,
                  declarations and conduct of the defendant at or just
                  immediately before the commission of the act, from the
                  character of the weapon used, and from the part of the body
                  on which the wound was inflicted.

Id. at 169. The instructions as a whole sufficiently suggested the requirement of the

intent to kill.

        Further, Taylor’s intent to kill Holly was not a central issue at his trial. Taylor’s

argument at trial was that he did not shoot at Holly and, thus, did not take a substantial

step toward killing Holly. Once the jury determined that Taylor did, in fact, shoot at

Holly, his intent was not in question. Testimony at the trial established that Taylor had

threated to kill Dorthea and anyone that got in his way. Even if trial counsel was

deficient, Taylor has failed to demonstrate that, but for the alleged deficiency, the result

of the proceeding would have been different. The post-conviction court’s denial of

Taylor’s petition on this basis is not clearly erroneous.

                        II. Ineffective Assistance of Appellate Counsel

        Taylor also argues that his appellate counsel was ineffective because she failed to

argue in the direct appeal that the attempted murder instruction resulted in fundamental

error. Because the strategic decision regarding which issues to raise on appeal is one of

the most important decisions to be made by appellate counsel, appellate counsel’s failure

to raise a specific issue on direct appeal rarely constitutes ineffective assistance. See

Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana Supreme Court has adopted


                                              9
a two-part test to evaluate the deficiency prong of these claims: (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. Bieghler v. State, 690

N.E.2d 188, 194 (Ind. 1997), cert. denied.        If this analysis demonstrates deficient

performance by counsel, the court then examines whether the issues that appellate

counsel failed to raise “would have been clearly more likely to result in reversal or an

order for a new trial.” Id.

       The post-conviction court concluded that appellate counsel’s performance was not

deficient because, even if she had raised the issue of fundamental error as a result of the

attempted murder instruction, the argument would not have been successful. The post-

conviction court noted that Taylor’s intent as to Holly was not a central issue in the case.

The post-conviction court also found no prejudice. On appeal, Taylor briefly argues that

his appellate counsel’s failure to raise the issue on direct appeal was ineffective

assistance.

       Because Taylor’s trial counsel did not object to the attempted murder jury

instruction at trial, appellate counsel would have been required to raise this issue on

direct appeal as fundamental error. “The ‘fundamental error’ exception is extremely

narrow, and applies only when the error constitutes a blatant violation of basic principles,

the harm or potential for harm is substantial, and the resulting error denies the defendant

fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). “The

error claimed must either make a fair trial impossible or constitute clearly blatant

violations of basic and elementary principles of due process.” Brown v. State, 929

                                            10
N.E.2d 204, 207 (Ind. 2010) (internal quotation omitted). “This exception is available

only in egregious circumstances.” Id. (internal quotation omitted).

         In Dawson v. State, 810 N.E.2d 1165, (Ind. Ct. App. 2004), trans. denied, we

addressed a similar ineffective assistance of appellate counsel argument. The instructions

at the defendant’s trial included a “knowingly” mens rea and also required an “intent to

kill.”   Dawson, 810 N.E.2d at 1174.         We held that the instructions given at the

defendant’s trial adequately informed the jury to convict him only if they found he had

the specific intent to kill. Consequently, his appellate counsel could not have proven the

prejudice necessary to establish a claim of fundamental error. Id. at 1176 (citing Price,

591 N.E.2d at 1029). Thus, appellate counsel was not ineffective for failing to challenge

the attempted murder jury instructions on direct appeal. Id.

         Similarly, here, the jury instructions adequately informed the jury that a specific

intent to kill Holly was required to convict Taylor of attempted murder. Further, Taylor’s

intent was not a central issue at trial. Taylor’s appellate counsel would have been unable

to demonstrate that the jury instructions resulted in fundamental error. Consequently, his

appellate counsel did not fail to present a significant and obvious issue, and she was not

ineffective for failing to challenge the attempted murder jury instruction as fundamental

error. The post-conviction court’s denial of Taylor’s petition on this issue is not clearly

erroneous.

                                         Conclusion

         The post-conviction court properly denied Taylor’s petition for post-conviction

relief. We affirm.

                                             11
      Affirmed.

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




                                    12
