MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Dec 09 2016, 8:32 am
regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Ruben Green                                              Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ruben B. Green,                                          December 9, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A04-1510-PC-1685
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Respondent                                      Hawkins, Judge
                                                         The Honorable Allan W. Reid,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G05-0409-PC-165296



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016     Page 1 of 10
[1]   Ruben Green appeals the denial of his petition for post-conviction relief from

      his Murder conviction, arguing that the post-conviction court erroneously

      determined that he did not receive the ineffective assistance of trial and

      appellate counsel. Finding no error, we affirm.


                                                    Facts
[2]   The underlying facts of this case are as follows:


              Ruben Green and Sharon Glass were involved in a romantic
              relationship from November 2003 to September 2004. On
              September 3, after the relationship had ended, Glass reported a
              computer and two DVD/VCR players had been taken from her
              home. The burglary upset Glass, so she and her new boyfriend,
              Robert Dunn, spent the night at a hotel. When she returned
              home the next day, she found her television had been stolen.
              That day, she reported Green had beaten her and told police she
              suspected he was involved in at least one of the burglaries. Dunn
              testified Green spied on Glass, called her frequently, and left a
              message stating she “was going to regret leaving me, bitch.” (Tr.
              at 625.)


              Robert Locke, a friend of Glass, was dating a woman who lived
              in the same apartment complex as Green. Locke was at the
              complex frequently. Green told Locke he had stolen some of
              Glass’ property, and Locke saw him pawn some of the items.
              Locke told Glass that Green had her property, but did not tell her
              Green had pawned the items.


              On September 13, Glass told Dunn that Green had called her,
              saying he was willing to return her property. Glass went to
              Green's apartment complex, where she saw Locke sitting outside.
              Glass told him that she had come to get her things from Green.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016   Page 2 of 10
        She told him if she was not out in fifteen minutes, he should call
        the police.


        Locke did not take her comment seriously and returned to his
        girlfriend’s apartment. About fifteen minutes later, Green
        appeared at the door of Locke’s girlfriend’s apartment and told
        Locke that Glass had hit him in the head with a bottle. Locke
        and Green ran back to Green’s apartment, where Locke saw
        Glass sitting in a chair. She was bloody and wearing only panties
        and a shirt. Her mouth was open and her eyes were rolled back
        in her head. Locke ran back to his girlfriend’s apartment to call
        911. Green also called 911 and began CPR on Glass as
        instructed.


        Paramedics arrived to take Glass to the hospital, and she died en
        route. Green was taken into custody. After being advised of his
        Miranda rights, Green claimed Glass had hit him in the head with
        his clock and bit him, the attack was unprovoked, and he had
        hurt her in the course of warding off her attack.


Green v. State, 875 N.E.2d 473, 475-76 (Ind. Ct. App. 2007). Glass’s autopsy

revealed that she had sustained several blunt force injuries to her face and head,

causing damage and significant bleeding and injury to her brain. She also

suffered a fractured skull, which severed both of her carotid arteries, and had

injuries to her neck consistent with strangulation. She suffered facial injuries,

some of which left a pattern on her skin consistent with the soles of the boots

Green was wearing when the police took him into custody. Glass also had

defensive wounds to the backs of her hands.




Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016   Page 3 of 10
[3]   The State charged Green with murder, and his jury trial took place between

      August 7 and August 9, 2006.1 Green raised a claim of self-defense. At the

      close of the evidence, the trial court gave final instruction 21-K on self-defense

      and final instruction 21-J, which was a limiting instruction on the use of

      evidence involving Green’s prior bad acts. The jury found Green guilty as

      charged, and the trial court later sentenced him to sixty years imprisonment.


[4]   Green brought a direct appeal of the conviction, raising issues related to double

      jeopardy, jury instructions regarding murder and voluntary manslaughter, and

      sufficiency of the evidence. This Court affirmed. Id. at 479. On January 15,

      2014, Green filed a petition for post-conviction relief, alleging ineffective

      assistance of both trial and appellate counsel. Following an evidentiary

      hearing, the post-conviction court denied the petition. Green now appeals.


                                         Discussion and Decision
                                            I. Standard of Review
[5]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:

                  “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).
                  “When appealing from the denial of post-conviction relief, the
                  petitioner stands in the position of one appealing from a negative



      1
          Green’s first jury trial ended in a mistrial for reasons that are not relevant to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016              Page 4 of 10
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[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.” Ben–Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


                             II. Assistance of Trial Counsel
[6]   Green argues that his trial counsel was ineffective for failing to object to final

      jury instruction 21-K and for failing to tender his own jury instruction regarding

      self-defense. 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 v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine

      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two
      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016   Page 5 of 10
      prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

      Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance

      claim based upon the prejudice prong, we may do so without addressing

      whether counsel’s performance was deficient.” Baer v. State, 942 N.E.2d 80, 91

      (Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be

      resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824

      (Ind. 2002).


[7]   Instruction 21-K reads as follows:

              An issue has been raised as to whether or not the Defendant was
              acting in self-defense.


              The defense of self-defense allows that a person is justified in
              using reasonable force against another person to protect himself,
              or a third party, from what he believes to be the imminent use of
              unlawful force. However, a person is justified in using deadly
              force only if he reasonably believes that such force is necessary to
              prevent serious bodily injury to himself or a third person, or to
              prevent the commission of a forcible felony. No person in this
              state shall be placed in legal jeopardy of any kind whatsoever for
              protecting himself or another by reasonably necessary means. It
              is the State’s burden to disprove a claim of self-defense by proof
              beyond a reasonable doubt. The State may satisfy this burden by
              proving beyond a reasonable doubt:


                      • That the Defendant was committing a crime,
                      • That the Defendant was in a place where he had no right
                        to be,
                      • That the Defendant acted improperly in that he was the
                        initial aggressor or participated willingly in the
                        violence[,]

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016   Page 6 of 10
                • That the Defendant used a degree of force that was
                  excessive or unreasonable under the circumstance, or
                • If the Defendant used deadly force, he did not have a
                  reasonable fear or apprehension of death or great bodily
                  harm.


        If the State proves any one of these facts beyond a reasonable
        doubt, then you may disregard the claim of self-defense. The
        State is not required to present rebuttal evidence to disprove a
        claim of self-defense, it may rely upon any evidence introduced
        during the course of the trial.


        The question of the existence of an apparent danger and the
        amount of force necessary to resist force can only be determined
        from the standpoint of the Defendant at the time of his actions
        and under the then existing circumstances. The Defendant may
        use such force as may reasonably be necessary to resist such
        attack or apparent attack. He will not be accountable for an error
        in judgment as to the amount of force necessary, provided he
        acted reasonably and honestly. One who was in no apparent
        danger and had no reasonable ground for apprehension of danger
        cannot raise this defense.


Appellant’s App. p. 203-04. Green argues that this instruction is improper

because it does not instruct the jury of the requirement that, in order to preclude

a defendant from asserting self-defense if he is committing a crime, there must

be an immediate causal connection between the crime and the confrontation.

The State acknowledges that the evidence must show that, but for the defendant

committing a crime, the alleged act of self-defense resulting in injury to the

victim would not have occurred, Mayes v. State, 744 N.E.2d 390, 394 (Ind.

2001), and that Instruction 21-K does not include that language.


Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016   Page 7 of 10
[8]   It is well established that errors in the giving of jury instructions are harmless if

      the “conviction is clearly sustained by the evidence and the jury could not

      properly have found otherwise.” E.g., Dill v. State, 741 N.E.2d 1230, 1233 (Ind.

      2001). In this case, there is overwhelming evidence supporting the verdict and

      there is no likelihood that adding the causal language to the instruction would

      have changed the result.2


[9]   Specifically, there are three other relevant ways the State may negate a

      defendant’s claim of self-defense: by showing that (1) he was the initial

      aggressor or participated willingly in the violence; (2) he used a degree of force

      that was excessive or unreasonable under the circumstances; or (3) he did not

      have a reasonable fear or apprehension of death or great bodily harm. I.C. § 35-

      41-3-2 (2004). Given the wealth of evidence in the record regarding Glass’s

      catastrophic injuries, including a fractured skull severing both carotid arteries,

      neck injuries consistent with strangulation, and facial injuries leaving a pattern

      on her skin that matched the soles of Green’s boots, there is little to no

      likelihood that the addition of the causal language to Instruction 21-K would

      have changed the outcome. Indeed, it is entirely likely that the jury focused far

      more on the fact that Green used an excessive or unreasonable degree of force




      2
        Instruction 21-J stated that evidence regarding Green’s prior bad acts is solely relevant to the issue of
      Green’s intent, motive, knowledge, and the nature of the relationship between Green and Glass. Green
      seems to argue that this instruction would have permitted the jury to determine that he had committed a
      crime and, pursuant to Instruction 21-K, the claim of self-defense would be disproved. Green
      misunderstands Instruction 21-J, which is unrelated to whether the State met its burden of disproving self-
      defense. Instruction 21-J, which acted as a limit on the jury’s ability to consider evidence, had no effect on
      the claim of self-defense and we decline to reverse on this basis.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016             Page 8 of 10
       than on the fact that he may have earlier committed a crime by stealing Glass’s

       personal belongings. As a result, we find that Green has failed to establish that

       his attorney’s failure to object to Instruction 21-K prejudiced him such that the

       result of the proceeding would have been different had an objection been made.

       In other words, the post-conviction court did not err by denying his petition for

       post-conviction relief on this basis.


                                      III. Appellate Counsel
[10]   Green argues that appellate counsel was ineffective for failing to raise the issue

       of Final Instruction 21-K in his direct appeal. The standard of review for claims

       of ineffective assistance of appellate counsel is the same as for trial counsel in

       that the defendant must show appellate counsel was deficient in his or her

       performance and that the deficiency resulted in prejudice. E.g., Hollowell v.

       State, 19 N.E.3d at 269. Ineffectiveness is rarely found when the issue is the

       failure to raise a claim on direct appeal. Taylor v. State, 717 N.E.2d 90, 94 (Ind.

       1999). The decision as to what issues to raise on appeal is one of the most

       important strategic decisions made by appellate counsel, and we give

       considerable deference to those decisions. Bieghler v. State, 690 N.E.2d 188, 195

       (Ind. 1997). To succeed on this claim, the petitioner must show that the

       unraised issue was significant, obvious, and clearly stronger than the issues that

       were raised. Id. at 194.


[11]   Green contends that appellate counsel should have argued on appeal that

       Instruction 21-K was erroneous. Because no objection was made to this


       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016   Page 9 of 10
       instruction at trial, to succeed on appeal, counsel would have had to establish

       fundamental error. Hopkins v. State, 782 N.E.2d 988, 991 (Ind. 2003). A claim

       of fundamental error is not viable absent a showing of grave peril and the

       possible effect on the jury’s decision. Id.


[12]   As noted above, however, Green was not prejudiced as a result of Instruction

       21-K. Had the causal language been included, there is little to no likelihood

       that the outcome would have been different. Consequently, even if appellate

       counsel had raised the issue on direct appeal, Green would not have prevailed.

       We find, therefore, that the post-conviction court did not err by concluding that

       Green failed to establish that he received the ineffective assistance of appellate

       counsel.


[13]   The judgment of the post-conviction court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-PC-1685 | December 9, 2016   Page 10 of 10
