MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jun 25 2018, 11:05 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathan J. Bledsoe,                                       June 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A-CR-3016
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff.                                      Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1702-F3-28

Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-CR-3016 | June 25, 2018                      Page 1 of 7
                                       Statement of the Case
[1]   Nathan Bledsoe (“Bledsoe”) appeals his conviction by jury of Level 5 felony

      battery.1 He argues that he was denied the effective assistance of trial counsel

      and that there is insufficient evidence to support his conviction. Concluding

      that Bledsoe was not denied the effective assistance of counsel and that there is

      sufficient evidence to support his conviction, we affirm the trial court’s

      judgment.


[2]   We affirm.


                                                     Issues
                 1.      Whether Bledsoe was denied the effective assistance of
                         trial counsel.

                 2.      Whether there is sufficient evidence to support Bledsoe’s
                         conviction.

                                                     Facts
[3]   In late February 2017, Bledsoe’s father, David (“David”), contacted the

      Howard County Sheriff’s Department and asked deputies to remove an

      argumentative Bledsoe from David’s home. Bledsoe asked to be taken to a

      rescue mission. However, staff at the mission refused to allow Bledsoe to spend

      the night because he was intoxicated. David, who did not want Bledsoe to




      1
          IND. CODE § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3016 | June 25, 2018   Page 2 of 7
      wander the streets for the rest of the night, agreed to let Bledsoe return to his

      house for the night.


[4]   Later that evening, Bledsoe “went berserk, screaming and yelling” when he

      could not find his medication. (Tr. 134). David’s girlfriend, Deborah Philpot

      (“Philpot”) saw Bledsoe pick up a hatchet and hit David in the face with it,

      creating a large laceration that bled profusely. David was able to subdue

      Bledsoe and take the hatchet away from him while Philpot called the Sheriff’s

      Department. When deputies arrived at the scene, Philpot told them that

      Bledsoe had also slapped her face. David was immediately transported to the

      local hospital and then to Indianapolis so that a plastic surgeon could stitch up

      the laceration on his face.


[5]   The State charged Bledsoe with Level 3 aggravated battery for striking David in

      the face with the hatchet. Bledsoe was also charged with Class A misdemeanor

      battery for striking Philpot in the face.


[6]   At trial, Philpot testified that she saw Bledsoe strike David in the face with the

      hatchet. Philpot further testified that Bledsoe did not strike her. David testified

      that Bledsoe struck him in the face with the hatchet. Photos of David’s facial

      laceration were introduced into evidence, and the jury was also able to see the

      scar that ran the length of David’s face.


[7]   After the State rested, the trial court granted Bledsoe’s motion for judgment on

      the evidence and dismissed the misdemeanor battery count relating to Philpot.

      In addition, defense counsel argued that David’s injury was not serious enough

      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3016 | June 25, 2018   Page 3 of 7
      to support a Level 3 aggravated battery charge. The jury subsequently

      convicted Bledsoe of the lesser included offense of Level 5 felony battery.

      Bledsoe now appeals.


                                                  Decision
      1.      Ineffective Assistance of Trial Counsel

[8]   Bledsoe first argues that trial counsel was ineffective. At the outset, we note the

      procedural effect of Bledsoe bringing his claim of ineffective assistance of trial

      counsel on direct appeal. Although this practice is not prohibited, a post-

      conviction proceeding is generally “‘the preferred forum’” for adjudicating

      claims of ineffective assistance of counsel because the presentation of such

      claims often requires the development of new facts not present in the trial

      record. McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999) (quoting Woods v. State,

      701 N.E.2d 1208, 1219 (Ind. 1998), reh’g denied, cert. denied). If a defendant

      chooses to raise a claim of ineffective assistance of counsel on direct appeal,

      “the issue will be foreclosed from collateral review.” Woods, 701 N.E.2d at

      1220. This rule should “likely deter all but the most confident appellants from

      asserting any claim of ineffectiveness on direct appeal.” Id. When a claim of

      ineffective assistance of counsel is based solely on the trial record, as it is on

      direct appeal, “every indulgence will be given to the possibility that a seeming

      lapse or error by defense counsel was in fact a tactical move, flawed only in

      hindsight[,]” and “[i]t is no surprise that such claims almost always fail.” Id. at

      1216 (quoting United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991), cert.

      denied).

      Court of Appeals of Indiana | Memorandum Decision 17A-CR-3016 | June 25, 2018   Page 4 of 7
[9]    We now turn to the substance of Bledsoe’s ineffective assistance of counsel

       claim. We review claims of ineffective assistance of counsel under the two-

       prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To

       prevail on a claim of ineffective assistance of counsel, Bledsoe must show that

       his counsel’s performance was deficient and that the lack of effective

       representation prejudiced him. See Strickland. 466 U.S. at 687. To satisfy the

       first prong, the petitioner must show that counsel’s representation fell below an

       objective standard of reasonableness and counsel committed errors so serious

       petitioner did not have “counsel” as guaranteed by the Sixth Amendment of the

       United States Constitution. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

       To satisfy the second prong, the petitioner must show a reasonable probability

       that, but for counsel’s 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.


[10]   Here, Bledsoe contends his trial counsel was ineffective because counsel “in

       effect, told the jury that [Bledsoe] was guilty. A defense attorney should not tell

       a jury that his or her client is guilty, leaving the jury to decide only the level of

       guilt.” (Bledsoe’s Br. 9). In support of this contention, Bledsoe directs us to the

       following excerpt from his counsel’s closing argument:


               There’s not been a defense here today of mental disease or defect
               and there’s not been a defense today of self-defense. . . . So, I, he
               got cut and there’s no ifs, and no buts about it, he got cut, that
               happened. How it happened, I don’t know. And I assume that
               you’re going to fill in the blanks and you’re going to decide how
               it happened.
       Court of Appeals of Indiana | Memorandum Decision 17A-CR-3016 | June 25, 2018   Page 5 of 7
       (Tr. Vol. 2 at 237, 241).


[11]   We agree with the State that “counsel admits only that [David] was cut on the

       face – an undeniable fact given the pictures of [David’s] face admitted into

       evidence – but immediately follows that by saying, ‘How it happened, I don’t

       know.’ This is not an admission that [Bledsoe] cut [David].” (State’s Br. 12).

       Bledsoe has failed to meet his burden to show that counsel’s performance was

       deficient and that he was denied the effective assistance of trial counsel.


       2.      Sufficiency of the Evidence

[12]   Bledsoe also argues that there is insufficient evidence to support his conviction

       of Level 5 felony battery. Our standard of review for sufficiency of the evidence

       claims is well-settled. We consider only the probative evidence and reasonable

       inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). We do not reweigh the evidence or judge witness credibility. Id. We

       will affirm the conviction unless no reasonable fact finder could find the

       elements of the crime proven beyond a reasonable doubt. Id. The evidence is

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

       verdict. Id. at 147.


[13]   In order to convict Bledsoe of Level 5 felony battery, the State had the burden

       to prove beyond a reasonable doubt that Bledsoe knowingly or intentionally

       touched David in a rude, insolent, or angry manner and that serious bodily

       injury resulted to David. See I.C. § 35-42-2-1. Serious bodily injury includes

       serious permanent disfigurement or extreme pain. I.C. § 35-31.5-2-292.


       Court of Appeals of Indiana | Memorandum Decision 17A-CR-3016 | June 25, 2018   Page 6 of 7
[14]   Here, our review of the evidence reveals that Bledsoe sliced David’s face with a

       hatchet, creating a large laceration that bled profusely. As a result of this

       injury, David has been left with a permanent scar that runs the length of his

       face. This evidence is sufficient to support Bledsoe’s conviction for Level 5

       felony battery.2


[15]   Affirmed.


       Vaidik, C.J., and Barnes, Sr. J., concur.




       2
[1]      Bledsoe’s argument that “the credibility of the ‘two witnesses, including David’ --- the only persons present
       other than Bledsoe --- have been so compromised that their lack[] of credibility, at a minimum, gives rise to
       reasonable doubt,” is a request that we reweigh the evidence. (Bledsoe’s Br. 9). This we cannot do. See
       Drane, 867 N.E.2d at 146.




       Court of Appeals of Indiana | Memorandum Decision 17A-CR-3016 | June 25, 2018                       Page 7 of 7
