MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                         Jan 26 2016, 5:26 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Craig Persinger                                          Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana
                                                         Michael G. Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jerry E. Johnson,                                        January 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1507-CR-793
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana J.
Appellee-Plaintiff.                                      Kenworthy, Judge
                                                         Trial Court Cause No.
                                                         27D02-1402-FD-52



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-793| January 26, 2016   Page 1 of 8
                                         Statement of the Case
[1]   Jerry E. Johnson (“Johnson”) appeals his conviction, following a jury trial, for

      Class D felony theft.1 In this direct appeal, Johnson argues that he received

      ineffective assistance of trial counsel. Specifically, he contends that his trial

      counsel was ineffective for failing to request a jury instruction for criminal

      conversion as a lesser-included offense of theft. Because the record shows that

      Johnson’s counsel pursued an all-or-nothing trial strategy and Johnson has

      failed to show that this trial strategy was so deficient or unreasonable as to fall

      outside of the objective standard of reasonableness, we conclude that he has

      failed to show that his trial counsel rendered deficient performance.

      Accordingly, we affirm his conviction.


[2]   We affirm.


                                                        Issue
                Whether Johnson received ineffective assistance of trial counsel.

                                                        Facts
[3]   On October 19, 2013, Johnson was shopping in the Meijer store in Marion,

      Indiana. Meijer’s Regional Detective, Danielle Kennedy (“Kennedy”), who

      was working in Meijer’s surveillance room and monitoring the surveillance




      1
        IND. CODE § 35-42-4-3(a). We note that, effective July 1, 2014, a new version of the theft statute was
      enacted and that the offense of theft, for the total value of items that Johnson was alleged to have taken, is
      now a Level 6 Felony. Because Johnson committed this crime in 2013, we will refer to the statute in effect at
      that time.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-793| January 26, 2016              Page 2 of 8
      cameras for the store that day, saw Johnson in the liquor aisle. Kennedy’s

      attention was drawn to Johnson because he put multiple bottles of “high dollar”

      vodka in his cart, which already contained a “very expensive” vacuum and a

      home theatre system. (Tr. 29). Kennedy monitored Johnson as he walked to

      the back of the store and saw him cover the vodka with clothing.


[4]   Kennedy then notified other employees that they needed to monitor the exit

      doors because she believed that Johnson was going to attempt to do a “push

      out” theft by pushing his cart through the exit. (Tr. 32). Kennedy and other

      employees stood by the two main exits. The employees did not go back by the

      garden center exit because the garden center was closed for the season and the

      outer gate from the garden center to the parking lot was supposed to have been

      locked.


[5]   Johnson did not approach the exits, and the store employees were unable to

      locate him in the store. When Kennedy learned that the garden center gate had

      not been locked that day, she reviewed the store’s surveillance video and saw

      that Johnson had exited the main store into the garden center. Kennedy then

      walked to the garden center and saw an empty cart outside of the garden center

      gate. The store’s inventory system for that day showed that the brand of

      vacuum in Johnson’s cart had not been purchased by anyone during the

      relevant period that Johnson was in the store.


[6]   The State charged Johnson with Class D felony theft. On May 12, 2015, the

      trial court held a jury trial, during which evidence regarding the facts above was


      Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-793| January 26, 2016   Page 3 of 8
      presented. Johnson stipulated that he: (1) was “the person shown on the video

      pushing the cart and gathering items in the store[;]” and (2) was “shown on the

      video pushing the cart containing the items into the garden center of Meijer.”

      (Tr. 39). Johnson, however, argued that the State could not prove beyond a

      reasonable doubt that he left the store’s premises with any unpaid merchandise

      because no one saw him, and the video did not show him, exiting the premises

      through the garden center gate with the merchandise or loading the

      merchandise in his car.


[7]   When the parties were discussing the preliminary instructions, Johnson’s

      counsel stated that “we will want to possibly have the lesser included, but I

      think that time will be, that decision will be made right before the, or at the

      conclusion of the evidence.” (Tr. 4). Later, when the trial court asked the

      parties if they had any objections to the final jury instructions, Johnson’s

      counsel had the following conversation with Johnson, apparently regarding the

      decision of whether to request a lesser-included instruction:

              [Defense Counsel]: Uh, the only question I have for you is, do
              you want that last one included or do you want to pass on it?

              [Johnson]: Pass.

      (Tr. 87). Johnson’s counsel then told the trial court, “Pass on it. We are

      satisfied with the finals as drafted.” (Tr. 87).




      Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-793| January 26, 2016   Page 4 of 8
[8]    The jury found Johnson guilty as charged. The trial court imposed a three (3)

       year executed sentence to be served at the Department of Correction. Johnson

       now appeals.


                                                   Decision
[9]    Johnson raises a sole issue in this direct appeal. Johnson argues that his trial

       counsel’s failure to tender a lesser-included offense instruction constituted

       ineffective assistance of counsel.


[10]   We evaluate claims concerning denial of the Sixth Amendment right to

       effective assistance of counsel using the two-part test articulated in Strickland v.

       Washington, 466 U.S. 668 (1984), reh’g denied. Reed v. State, 866 N.E.2d 767,

       769 (Ind. 2007). A claim of ineffective assistance of trial counsel requires a

       showing that: (1) counsel’s performance was deficient by falling below an

       objective standard of reasonableness based on prevailing professional norms;

       and (2) counsel’s performance prejudiced the defendant such that “‘there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441,

       444 (Ind. 2002) (quoting Strickland, 466 U.S. at 687), reh’g denied, cert. denied.

       “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar

       v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012) (citing French v. State, 778

       N.E.2d 816, 824 (Ind. 2002)), trans. denied.


[11]   Before proceeding to Johnson’s specific allegation of error, we pause to note the

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

       Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-793| January 26, 2016   Page 5 of 8
       counsel on direct appeal. While 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).


[12]   Johnson contends that his trial counsel was ineffective for failing to request a

       jury instruction on conversion as a lesser-included offense of theft under Wright

       v. State, 685 N.E.2d 563 (Ind. 1995). The State, on the other hand,

       acknowledges that conversion is an inherently lesser-included offense of theft,

       but it argues that defense counsel’s failure to tender a lesser-included offense

       instruction was part of an “all or nothing” defense strategy and did not

       constitute deficient performance. (State’s Br. 10). We agree with the State.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-793| January 26, 2016   Page 6 of 8
[13]   Our Indiana Supreme Court has explained that, where defense counsel pursues

       an “all or nothing” trial strategy, a “tactical decision not to tender a lesser

       included offense does not constitute ineffective assistance of counsel, even

       where the lesser included offense is inherently included in the greater offense.”

       Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998) (citing Page v. State, 615

       N.E.2d 894, 895 (Ind. 1993)). “It is well-established that trial strategy is not

       subject to attack through an ineffective assistance of counsel claim, unless the

       strategy is so deficient or unreasonable as to fall outside of the objective

       standard of reasonableness.” Id. “This is so even when ‘such choices may be

       subject to criticism or the choice ultimately prove[s] [to be] detrimental to the

       defendant.’” Id. (quoting Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992), reh’g

       denied). “Counsel is afforded considerable discretion in choosing strategy and

       tactics, and we will accord those decisions deference.” Timberlake v. State, 753

       N.E.2d 591, 603 (Ind. 2001), reh’g denied, cert. denied. “A strong presumption

       arises that counsel rendered adequate assistance and made all significant

       decisions in the exercise of reasonable professional judgment.” Id.


[14]   Here, Johnson has failed to show that his trial counsel’s failure to request an

       instruction for a lesser-included offense was “so deficient or unreasonable as to

       fall outside of the objective standard of reasonableness.” See Autrey, 700 N.E.2d

       at 1141. Indeed, the direct appeal record indicates that Johnson’s counsel

       pursued an all-or-nothing defense. His counsel argued that the State had failed

       to prove the charged theft offense beyond a reasonable doubt because the

       evidence was only circumstantial and because there was no direct evidence that

       Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-793| January 26, 2016   Page 7 of 8
       he had exited the premises with any unpaid merchandise. Johnson’s counsel’s

       lack of request for a jury instruction on a lesser-included offense was part of his

       defense strategy. Further, it was a strategy that Johnson approved. Because

       counsel is afforded considerable discretion in choosing strategy and tactics, we

       conclude that Johnson has failed to prove that his counsel’s decision not to

       request a jury instruction on conversion as a lesser-included offense of theft

       constituted ineffective assistance of counsel. Accordingly, Johnson has failed to

       meet his burden of showing that he received ineffective assistance of trial

       counsel. See, e.g., Autrey, 700 N.E.2d at 1141 (holding that defense was not

       ineffective for opting for an “all or nothing” trial strategy over tendering a lesser

       included offense instruction); Page, 615 N.E.2d at 895-96 (holding that defense

       counsel’s failure to request a lesser included instruction did not constitute

       ineffective assistance of counsel); Brown v. State, 24 N.E.3d 529, 535 (Ind. Ct.

       App. 2015) (holding that defense counsel’s failure to tender a jury instruction

       on Class A misdemeanor criminal conversion as a lesser-included offense of

       Class D felony theft was a reasonable, all-or-nothing trial strategy).


[15]   Affirmed.


       Baker, J., and Bradford, J., concur.




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