MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Sep 29 2015, 9:33 am
this Memorandum Decision shall not be
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
Nicole A. Zelin                                          Gregory F. Zoeller
Pritzke & Davis, LLP                                     Attorney General of Indiana
Greenfield, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Merriman, III,                                    September 29, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A01-1503-CR-119
        v.                                               Appeal from the Hancock Superior
                                                         Court
State of Indiana,                                        The Honorable Terry K. Snow,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         30D01-1401-FD-1016



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 1 of 16
                                         Statement of the Case
[1]   Appellant/Defendant, Joseph Merriman III (“Merriman III”), appeals his

      conviction for Class D felony residential entry,1 which was based on his

      breaking and entering the house of his grandfather, Joseph Merriman

      (“Merriman Sr.”). On appeal, he argues that: (1) there was insufficient

      evidence that he entered Merriman Sr.’s house to support his conviction; and

      that (2) his trial counsel provided ineffective assistance for failing to object

      under Evidence Rule 404(b) to the State’s introduction of evidence of Merriman

      III’s alleged prior bad acts. We affirm because we conclude that there was

      sufficient evidence to support Merriman III’s conviction, and he was not

      prejudiced by his trial counsel’s lack of objection.


[2]   We affirm.


                                                       Issues
              1. Whether there was sufficient evidence to support Merriman
              III’s conviction for Class D felony residential entry.

              2. Whether Merriman III received ineffective assistance of trial
              counsel.




      1
       IND. CODE § 35-43-2-1.5. We note that, effective July 1, 2014, this statute was amended and Merriman III’s
      offense would now be considered a Level 6 felony. However, we will apply the version of the statute in effect
      at the time of his offense.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015        Page 2 of 16
                                                     Facts
[3]   Merriman Sr. lives in Greenfield, Indiana, and is a pastor of a church located

      two lots from where he lives. He “basically raised” his grandson, Merriman III,

      who grew up living with him. (Tr. 34). For a period of time before 2013,

      Merriman III, his ex-wife, and their four children lived with Merriman Sr.

      However, they later moved out, and Merriman Sr. let Merriman III stay at the

      church near his house because he did not have anywhere to stay. The last time

      Merriman III resided at the church was in 2013, although he kept some of his

      belongings there until March of 2014.


[4]   In December 2013, Merriman Sr.’s wife died, and his relationship with

      Merriman III deteriorated. At some point before May 2014, Merriman Sr.

      noticed that he was missing some of his belongings—a handgun, five hundred

      dollars in cash that had been in a safe in the church, two other firearms, and

      their accessories that had been in his house. He believed that Merriman III had

      taken the items.


[5]   After Merriman III moved out of Merriman Sr.’s house, he kept receiving mail

      there, and his ex-wife would pick up the mail and deliver it to him. On May 15

      or 16, 2014, Merriman Sr. received a gun permit in the mail addressed to

      “Joseph D. Merriman” without the III specified. (Tr. 40). However, he knew

      the permit was intended for Merriman III because it listed his age and birth

      date. As a result, he notified Merriman III’s ex-wife and the mother of two of

      his other children “that [Merriman III] had until Sunday night to get [Merriman


      Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 3 of 16
      Sr.’s] guns back or [he] was [going] to get in touch with State Police because

      [Merriman III] did not live there and he was the III and not Sr.” (Tr. 40).


[6]   On May 18, 2014, Merriman Sr. had church, then went to his son’s house

      sometime afterwards, and did not get home until 8:00 or 9:00 p.m. that night.

      When he left his house, both his front and back door were locked, and his

      garage was shut. That afternoon, Merriman Sr.’s neighbor, Michael Estep

      (“Michael”), was mowing the lawn in the lot next to Merriman Sr.’s house

      when Merriman III drove up in a white Pontiac Grand Am. Merriman III

      approached Michael and asked if he knew whether Merriman Sr. was home.

      Michael told him that he did not know, but Merriman asked him the same

      question “approximately four to five times.” (Tr. 88). Finally, Merriman III

      walked back to his car and left.


[7]   Later that day, around 6:00 to 7:00 p.m., Michael and his wife, Pamela Estep

      (“Pamela”) (collectively, “the Esteps”), were leaving for dinner when they

      noticed the Pontiac Grand Am sitting in front of the church and Merriman III

      walking to the back of Merriman Sr.’s house. Michael saw Merriman III

      motion to two females in the Pontiac Grand Am, so he circled around the block

      to see what was happening and observed the Pontiac Grand Am drive to

      Merriman Sr.’s house and pull into the driveway.


[8]   The next morning, Merriman Sr. went to take out his trash and noticed that one

      of the “kicker plates,” which is the part of a door that normally locks the door

      lock, of his back door was on the floor. (Tr. 63). He went to the door and


      Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 4 of 16
       concluded that the door had been forced open because both of the locks on the

       door and their kicker plates were damaged. Subsequently, he searched his

       house and discovered that the only item missing in the house was the gun

       permit he had received in the mail.


[9]    Merriman Sr. contacted law enforcement, and Officer Jon Anderson (“Officer

       Anderson”) with the Greenfield Police Department responded to the scene.

       Officer Anderson observed that the doorframe of the back door had “obvious

       damage.” (Tr. 63). Because Officer Anderson left his police vehicle outside of

       the house, Pamela saw the police vehicle and visited Merriman Sr. later that

       day. When she heard that someone had entered the house, she told him what

       she and Michael had witnessed the prior night. Merriman Sr. relayed the

       information to Officer Anderson, who then also interviewed the Esteps.


[10]   Subsequently, Detective John Cutler (“Detective Cutler”) with the Investigation

       Division of the Greenfield Police Department contacted Merriman III and

       asked him to come in to the Police Department for an interview. On June 4,

       2014, Merriman III complied with Detective Cutler’s request, and Detective

       Cutler interviewed him. The Detective recorded a video of the interview.


[11]   Thereafter, on June 19, 2014, the State charged Merriman III with Class D

       felony residential entry. On July 29, 2014, Merriman III motioned for the court

       to order the State to disclose prior to trial any 404(b) evidence—“evidence of

       other crimes, wrongs, or bad acts by [Merriman III] or any defense witness”—




       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 5 of 16
       that it intended to introduce at trial. (App. 17(a)). 2 The trial court granted the

       motion on July 30, 2014.


[12]   On January 5, 2015, the trial court held a jury trial. At trial, Merriman Sr.

       testified that he believed Merriman III had been the person who entered his

       house on the night of May 18, 2014. The following exchange occurred between

       the State and Merriman Sr.:


                  [STATE:] And did you—at that time did you have any idea who
                  would have done this?

                  [MERRIMAN SR.:] Yes, I did.

                  [STATE:] And at that point based—based on what?

                  [MERRIMAN SR.:] Based on the fact that I had uh, had three
                  guns missing. Based on the fact that I got a gun permit that
                  wasn’t mine. Based on the fact that I had given a three day
                  ultimatum uh, to have my guns back and then he could have the
                  permit.

                  [STATE:] Okay. And had you uh,–so who do you think do it—
                  that did it at that time? Who do you think did it?

                  [MERRIMAN SR.:] My grandson.


       (Tr. 44). Merriman III’s counsel did not object to this testimony.


[13]   The State also solicited testimony from Detective Cutler, Merriman’s ex-wife,

       and his ex-girlfriend regarding the fact that Merriman Sr. believed Merriman III




       2
           This page is actually page 18 of the Appellant’s Appendix, but Merriman III has labeled it as 17(a).


       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015            Page 6 of 16
had stolen his guns and the other items in the church. When Detective Cutler

testified, the State introduced the video of his June 4, 2014 interview of

Merriman III into evidence without objection. In the video, the Detective

questioned Merriman III about his grandfather’s belief that he had stolen his

guns. Then, when Merriman’s ex-wife testified, the State asked if she had ever

had a conversation with Merriman Sr. about the gun permit, and she testified:


        I ran into [Merriman III’s father] at Hancock Hospital in May—
        May 16th and he had told me that [Merriman Sr.] had gotten a
        gun permit, that he had opened it, that it was [Merriman III’s]
        and that he wasn’t gonna give it to him um, until [Merriman III]
        had brought back some things that he said were his and that he
        was just gonna keep it.


(Tr. 113). Similarly, the State asked Merriman III’s ex-girlfriend whether she

had ever been approached about Merriman III’s gun permit, and she testified:


        No, not that I’m aware of. The only time he ever approached me
        was right after [Merriman Sr.’s wife] passed away[.] [H]e had
        contacted me and asked me all kinds of questions about all kinds
        of different things pertaining to if I knew about a gun, if I knew
        about all these things because he said supposedly all kinds of
        things came up missing out of the church. Um, he questioned
        me about freezers, money, guns. Just kept going and it wasn’t
        really—he was just trying to push me to see if I had any
        information on him. Obviously, even though we weren’t
        together, we were still really close that whole timeframe. We
        were—we weren’t technically together but we were together. I
        mean so I was around him often and out of word for word [sic] it
        was he—he couldn’t see [Merriman III] doing something like
        that but he was pushing me to try to get me to admit, that I knew
        something about this but the whole time we were together I never

Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 7 of 16
               seen anything or ever heard about anything about [Merriman III]
               getting there to get these things or do any of it and I personally
               never seen any guns that would have been taken from there.
               That wasn’t in my household when we were together.


       (Tr. 122). She admitted that Merriman had owned guns when they were

       together, but she said that she did not think he had gotten any new guns.

       Merriman III’s trial counsel did not object to any of the testimony from

       Detective Cutler, Merriman III’s ex-wife, or Merriman III’s ex-girlfriend.


[14]   At the conclusion of the trial, the jury found Merriman III guilty as charged.

       The trial court sentenced him to eighteen (18) months, which it ordered

       suspended to probation. Merriman III now appeals.


                                                   Decision
[15]   On appeal, Merriman III raises two issues: (1) whether there was sufficient

       evidence to support his conviction; and (2) whether he received effective

       assistance of trial counsel. We will address each of those issues in turn.


       1. Sufficiency of the Evidence


[16]   First, Merriman III argues that there was insufficient evidence to support his

       conviction for Class D felony residential entry because there was no evidence

       that he actually entered Merriman Sr.’s house, other than Merriman Sr.’s claim

       that the gun permit was missing. He asserts that the State proved only that he

       was on the outside of his grandfather’s residence and that the door was broken,




       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 8 of 16
       not that he entered the house. In support of this claim, he argues that the

       evidence of the missing gun permit was not sufficient to show his entry.


[17]   In order to convict Merriman III of residential entry, the State had to prove that

       he: “knowingly or intentionally [broke] and [entered] the dwelling of another

       person.” I.C. § 35-43-2-1.5. Residential entry is a lesser included offense of

       burglary which allows a felony prosecution for a housebreak without the need

       for proof of the intent to commit a target crime. Patterson v. State, 729 N.E.2d

       1035, 1043 (Ind. Ct. App. 2000). A conviction may be sustained based on

       circumstantial evidence. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App.

       2007), trans. denied. Circumstantial evidence need not exclude every reasonable

       hypothesis of innocence; rather, circumstantial evidence can sustain a

       conviction if an inference may reasonably be drawn from the evidence to

       support the judgment. Id.


[18]   Our standard of review for a sufficiency of the evidence claim is that we should

       only reverse a conviction when reasonable persons would not be able to form

       inferences as to each material element of the offense. Perez v. State, 872 N.E.2d

       208, 212-13 (Ind. Ct. App. 2007), trans. denied. We must consider only the

       probative evidence and reasonable inferences supporting the verdict, and we do

       not reweigh evidence or judge the credibility of witnesses. Drane v. State, 867

       N.E.2d 144, 146 (Ind. 2007). In addition, we consider only the evidence most

       favorable to the judgment and the reasonable inferences stemming from that

       evidence. Perez, 872 N.E.2d at 213.



       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 9 of 16
[19]   Here, we conclude that there was sufficient evidence to prove that Merriman III

       entered Merriman Sr.’s house. He claims that the missing gun permit was not

       sufficient evidence to prove that he entered the house. However, the

       circumstances and the nature of the gun permit were such that it was a

       reasonable inference, based on the evidence, that he entered his Grandfather’s

       house and took the permit. For one, his grandfather had given him a three-day

       ultimatum and threatened to withhold the gun permit, thereby giving him a

       motive to take the gun permit. Our supreme court has noted that “evidence of

       motive is entirely admissible and probative on the issue of the defendant’s

       guilt.” Biggerstaff v. State, 432 N.E.2d 34, 36 (Ind. 1982). Second, the gun

       permit was in Merriman III’s name and listed his birth date. As a result, he was

       the only person to whom the permit was consequential. In combination with

       the fact that: (1) the Esteps saw Merriman III at Merriman Sr.’s house the day

       that the door was broken; (2) the door was broken; and (3) the gun permit was

       missing, it was reasonable for the jury to infer that Merriman III had entered

       Merriman Sr.’s house and retrieved the permit. See Baltimore, 878 N.E.2d at

       258 (“[C]ircumstantial evidence can sustain a conviction if an inference may

       reasonably be drawn from the evidence to support the judgment.”). Since

       Merriman III does not otherwise challenge the State’s evidence regarding the

       elements of residential entry, we therefore conclude that there was sufficient

       evidence to support his conviction.


       2. Ineffective Assistance of Counsel




       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 10 of 16
[20]   Next, Merriman III argues that his trial counsel provided ineffective assistance

       by failing to object based on Evidence Rule 404(b) to the State’s introduction of

       evidence at trial.3 Evidence Rule 404(b) provides:


                Evidence of other crimes, wrongs, or acts is not admissible to
                prove the character of a person in order to show action in
                conformity therewith. It may, however, be admissible for other
                purposes, such as proof of motive, intent, preparation, plan,
                knowledge, identity, or absence of mistake or accident, provided
                that upon request by the accused, the prosecution in a criminal
                case shall provide reasonable notice in advance of trial, or during
                trial if the court excuses pre-trial notice on good cause shown, of
                the general nature of any such evidence it intends to introduce at
                trial.


       Merriman III asserts that the evidence the State introduced regarding his

       grandfather’s belief that he had previously stolen his grandfather’s guns and

       other belongings stored in the church constituted evidence of prior bad acts.

       Because the trial court granted his motion requiring the State to provide pretrial

       notice of any Rule 404(b) evidence that it wished to admit at trial, and the State




       3
         Before proceeding to Merriman III’s specific allegations of error, we pause to note the procedural effect of
       him bringing his claims of ineffective assistance of trial 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).

       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015             Page 11 of 16
       did not provide pretrial notice, he consequently asserts that his counsel was

       ineffective for failing to object to the various trial witnesses that testified about

       his grandfather’s beliefs that Merriman III had stolen his property. For the

       same reason, he also objects to the State’s admission of the video of his June 4,

       2014 interview with Detective Cutler.


[21]   We analyze claims of ineffective assistance of trial counsel according to the

       two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984).

       Emerson v. State, 695 N.E.2d 912, 918 (Ind. 1998), reh’g denied. An appellant

       must show both deficient performance and resulting prejudice in order to

       prevail on an ineffective assistance of counsel claim. Carillo v. State, 982 N.E.2d

       468, 472 (Ind. Ct. App. 2013). A deficient performance is a performance that

       falls below an objective standard of reasonableness. Id. Prejudice exists when a

       defendant shows there is a “‘reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.’”

       Id. (quoting Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002)). “‘A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.’”

       Id. (quoting Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001)).


[22]   “‘When considering a claim of ineffective assistance of counsel, we strongly

       presume ‘that counsel rendered adequate assistance and made all significant

       decisions in the exercise of reasonable professional judgment.’” McKnight v.

       State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013) (quoting Morgan v. State, 755

       N.E.2d 1070, 1073 (Ind. 2001)). A defendant must offer “‘strong and



       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 12 of 16
       convincing evidence’” to overcome this presumption. Id. (quoting Williams,

       771 N.E.2d at 73)).


[23]   To prevail on a claim of ineffective assistance of counsel due to the failure to

       object, an appellant must show that the objection would have been sustained if

       made. Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). We are not

       convinced that, here, the trial court would have sustained Merriman III’s trial

       counsel’s objection to the testimony regarding the guns and other allegedly

       missing items if he had made such an objection on the grounds of lack of notice

       under Rule 404(b).


[24]   Essentially, Merriman III claims that the State violated the trial court’s order

       requiring it to provide pretrial notice of any Rule 404(b) evidence. In Dixon v.

       State, 712 N.E.2d 1086, 1091 (Ind. Ct. App. 1999), this Court held that “we

       recognize no ‘hard and fast’ rule governing the time period in which the State

       should respond to an appropriate request under 404(b).” Rather, “the

       circumstances of the particular case should govern whether advance notice

       provided by the State to defense counsel is reasonable.” Id. In Burgett v. State,

       758 N.E.2d 571 (Ind. Ct. App. 2001), trans. denied, we held that, even though

       the trial court had granted the defendant’s “Motion for Pretrial Disclosure of

       the State’s Intention to Offer Rule 404(b) Evidence at Trial,” as here, the trial

       court had the discretion to allow the State’s notice of its intent to introduce

       evidence of prior bad acts at trial on the same day as the trial. See id. at 574.

       We reasoned that, even though the defendant had not received pretrial notice,

       the “purpose of the notice provision, under Evid. R. 404(b), is to reduce surprise

       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 13 of 16
       and promote early resolution of questions of admissibility.” Id. at 579. Because

       Burgett’s defense counsel “was aware of the existence of Burgett’s prior bad acts

       and was aware of a likelihood that the State would want to use this

       information,” there was no danger of surprise requiring the evidence to be

       inadmissible absent pretrial notice. Id.


[25]   Here, Detective Cutler questioned Merriman III about his grandfather’s beliefs

       that he had stolen the guns, and Merriman III was very aware that a primary

       reason he was a suspect in the instant case was because Merriman Sr. had given

       him an ultimatum to give the guns back within three days or he would withhold

       the gun permit. As a result, there was no danger that Merriman III would be

       “surprised” at trial by the witnesses’ testimonies regarding his grandfather’s

       belief that he had stolen the guns.


[26]   Further, the evidence was admissible under Evidence Rule 404(b). When a

       defendant objects to the admission of evidence on the grounds that it violates

       Evidence Rule 404(b), we: (1) determine whether evidence of prior bad acts is

       relevant to a matter at issue other than the defendant’s propensity to commit the

       charged act; and (2) balance the probative value of such evidence against its

       prejudicial effect. Id.


[27]   The evidence that Merriman Sr. believed Merriman III had stolen his guns was

       relevant for motive because it was intertwined with the ultimatum that

       Merriman Sr. had given Merriman III about his gun permit. As we stated

       above, motive is always relevant in the proof of a crime. See id.


       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 14 of 16
[28]   For these reasons, we are not convinced that the trial court would have

       sustained an objection if Merriman III’s counsel had objected to the witnesses’

       testimonies regarding Merriman Sr.’s guns and missing items and the State’s

       admission of the video of Merriman III’s police interview. Thus, we are not

       convinced that Merriman III’s trial counsel rendered deficient performance by

       failing to object.


[29]   Moreover, Merriman III has failed to meet his burden of showing that he was

       prejudiced by his trial counsel’s lack of objection. Regardless of whether his

       trial counsel would have prevailed if he had made an objection, however, we

       also find that his counsel was not ineffective because we are not convinced that

       the admission of the evidence prejudiced Merriman III’s defense. In order to

       prevail on an ineffective assistance of counsel claim, a defendant must prove

       that his counsel’s errors prejudiced his defense. Carillo, 982 N.E.2d at 472.

       Prejudice exists when a defendant shows there is a reasonable probability that,

       but for counsel’s unprofessional errors, the result of the proceeding would have

       been different. Id.


[30]   Even if Merriman III’s trial counsel had objected and the trial court had held

       that the witnesses’ testimonies regarding the guns and alleged thefts were

       inadmissible, there was still sufficient evidence to support Merriman III’s

       conviction. The State introduced evidence that Merriman Sr. threatened to

       withhold Merriman III’s permit, that a witness saw Merriman III heading to the

       back of Merriman Sr.’s house the same day that his back door was broken, that

       the back door was in fact broken, and that the permit was missing the next day.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 15 of 16
       In light of this evidence, we conclude that Merriman III had failed to show that

       the result of the proceeding would have been different. Accordingly, we

       likewise conclude that his counsel did not provide ineffective assistance. See id.


[31]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1503-CR-119 | September 29, 2015   Page 16 of 16
