MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                    Jan 14 2016, 7:03 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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Rodney Mosby                                             Gregory F. Zoeller
Westville, Indiana                                       Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Rodney Mosby,                                            January 14, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A05-1503-PC-103
        v.
                                                         Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,
                                                         The Honorable John M.
Appellee-Respondent.                                     Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1404-PC-19



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016     Page 1 of 10
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Rodney Mosby (Mosby), appeals the post-conviction

      court’s denial of his petition for post-conviction relief.


[2]   We affirm.


                                                     ISSUE

[3]   Mosby raises two issues on appeal, which we restate as the following single

      issue: Whether Mosby was denied effective assistance of trial counsel.


                           FACTS AND PROCEDURAL HISTORY

[4]   The facts most favorable to Mosby’s conviction were set forth in this court’s

      opinion in Mosby’s direct appeal as follows:

              On the morning of May 1, 2012, Williams withdrew $400 from an
              ATM, stopped at a 7-11 for cigarettes and a drink, and went to a
              friend’s [] house. Orlando, another friend of Williams’[], was
              supposed to be going to court that day, and Williams planned to meet
              him at the house and give him money to help make bail. When
              Williams arrived, he found only Mosby and Howard, both in the
              downstairs living room. Howard told Williams that Orlando had
              already gone to court, and Williams left. As Williams walked away
              from the house, Howard yelled at him to return, saying that Orlando
              was on the telephone.


              Williams returned to find Howard on the stairs and Mosby lying on a
              couch. Howard handed Williams the telephone, walked past him,
              slammed the door shut, put a handgun to Williams’[] head, and
              demanded that he “come off everything [,]” which Williams
              understood as a demand that he hand over anything of value. Howard
              handed the telephone to Mosby, saying, “Hey, Bro, come on, take the
              phone.” Mosby said, “Just give him everything, so you won’t make it
              a worser [sic] situation or get yourself hurt.” When Williams did not

      Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016   Page 2 of 10
              initially comply with Howard’s demands, Howard struck him on the
              head with the grip of the handgun. Williams threw all of his cash on
              the ground, and Howard ordered him to leave.


              A neighbor saw three men on the porch, and heard one of them say,
              “You hit me in the head, and now you took my money.” Williams
              called police and said that he had been robbed by two men. As Mosby
              and Howard walked away from the house, the neighbor overheard one
              say to the other, “Oh, he ain’t going to do nothing.” South Bend
              Police Officer James Dennin soon arrived and observed Mosby and
              Howard walking in an alley. When Officer Dennin identified himself
              as a police officer and yelled at the duo to stop, they turned, looked,
              and ran off down the alley. Mosby and Howard were apprehended
              soon thereafter, Mosby had $100.00 on his person and Howard had
              $278.00.


      Mosby v. State, No. 71A04-1209-CR-469 (Ind. Ct. App. May 17, 2013) (internal

      citations omitted).


[5]   On May 2, 2012, the State charged Mosby with Count I, robbery with a deadly

      weapon, a Class B felony; Count II, robbery, a Class B felony; and Count III,

      resisting law enforcement, a Class A misdemeanor. Mosby’s jury trial

      commenced on July 31, 2012 and concluded on August 1, 2012. At the close of

      the evidence, the jury found Mosby guilty as charged. On August 29, 2012, the

      trial court held Mosby’s sentencing hearing, where it merged Count II into

      Count I. On Count I, the trial court sentenced Mosby to fifteen years in the

      Department of Correction (DOC), and one year on Count III. Mosby’s

      sentences were to run concurrently.


[6]   Mosby appealed. On appeal, Mosby argued that there was insufficient evidence

      to sustain his robbery conviction; the trial court abused its discretion by

      Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016   Page 3 of 10
       excluding certain evidence; and the trial court’s vior dire amounted to a

       fundamental error. On May 17, 2013, we affirmed Mosby’s conviction and

       sentence.


[7]    On March 26, 2014, Mosby filed a pro se petition for post-conviction relief

       alleging ineffective assistance of his trial and appellate counsels. With respect

       to Trial Counsel, Mosby argued that she failed to (1) tender an instruction on

       theft as a lesser-included offense of robbery, (2) object to the sentence imposed,

       (3) object to the trial court’s response to a jury question posed during

       deliberations, and (4) file a motion to dismiss with respect to Counts I and II.

       As for Appellate Counsel, Mosby argued that counsel was ineffective for failing

       to raise the above four issues on his direct appeal.


[8]    On December 10, 2014, the post-conviction court held an evidentiary hearing.

       At the close of the evidence, the post-conviction court took the matter under

       advisement. On February 13, 2015, the post-conviction court issued its findings

       of fact and conclusions of law denying Mosby’s petition.


[9]    Mosby now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[10]   Under the rules of post-conviction relief, the petitioner must establish the

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974–75 (Ind. Ct. App. 2002).

       To succeed on appeal from the denial of relief, the post-conviction petitioner

       must show that the evidence is without conflict and leads unerringly and

       Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016   Page 4 of 10
       unmistakably to a conclusion opposite that reached by the post-conviction

       court. Id. at 975. The purpose of post-conviction relief is not to provide a

       substitute for direct appeal, but to provide a means for raising issues not known

       or available to the defendant at the time of the original appeal. Id. If an issue

       was available on direct appeal but not litigated, it is waived. Id.


                                        II. Ineffective Assistance of Counsel

[11]   Mosby contends that he was denied the effective assistance of Trial Counsel.

       The standard by which we review claims of ineffective assistance of counsel is

       well established. In order to prevail on a claim of this nature, a defendant must

       satisfy a two-pronged test, showing that: (1) his counsel’s performance fell

       below an objective standard of reasonableness based on prevailing professional

       norms; and (2) there is a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. Johnson v. State, 832 N.E.2d

       985, 996 (Ind. Ct. App. 2005), (citing Strickland v. Washington, 466 U.S. 668,

       690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g denied, trans. denied). The

       two prongs of the Strickland test are separate and independent inquiries.

       Johnson, 832 N.E.2d at 996. Thus, “[i]f it is easier to dispose of an

       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

       course should be followed.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind.

       2001), reh’g denied, cert. denied, 537 U.S. 839 (2002) (quoting Strickland, 466 U.S.

       at 697).


[12]   Counsel is afforded considerable discretion in choosing strategy and tactics and

       we will accord those decisions deference. Timberlake, 753 N.E.2d at 603. A
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       strong presumption arises that counsel rendered adequate assistance and made

       all significant decisions in the exercise of reasonable professional judgment. Id.

       The Strickland Court recognized that even the finest, most experienced criminal

       defense attorneys may not agree on the ideal strategy or the most effective way

       to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and

       instances of bad judgment do not necessarily render representation ineffective.

       Id. Furthermore, we will not speculate as to what may or may not have been

       advantageous trial strategy as counsel should be given deference in choosing a

       trial strategy which, at the time and under the circumstances, seems best.

       Johnson, 832 N.E.2d at 997.


[13]   Although he raised four issues with respect to Trial Counsel’s performance,

       Mosby only challenges two, namely, (1) counsel failed to tender an instruction

       on theft as a lesser-included offense of robbery, and (2) counsel failed to object

       to the trial court’s response to a jury question posed during deliberations. We

       will address each issue in turn.


                                             A. Jury Instructions

[14]   Mosby first argues that he received ineffective assistance of Trial Counsel

       because she failed to tender an instruction on theft as a lesser-included offense

       of robbery. We disagree. Theft requires the knowing or intentional exertion of

       unauthorized control over the property of another person with the intent to

       deprive the other person of any part of the property’s value or use. Ind. Code §

       35-43-4-2 (2012). Robbery requires the same elements, as well as the use of

       threat or force. I.C. § 35-42-5-1 (2012). The State charged Mosby with robbery,
       Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016   Page 6 of 10
       but could have established that Mosby committed theft by proving the elements

       of robbery, less the use of force. Therefore, theft is inherently included in a

       robbery charge.


[15]   Because theft is inherently included in a robbery charge, we must determine

       whether a serious evidentiary dispute existed concerning the element

       distinguishing the two crimes—use of force—whereby the jury could have

       concluded that Mosby had committed theft but not robbery. Wright v. State, 658

       N.E.2d 563, 567 (Ind. 1995).


[16]   Despite Mosby’s claim, there was no dispute that force was used to procure

       money from Williams. Williams testified that when Howard first accosted him,

       Mosby was sleeping on the couch. Williams testified that when he failed to

       assent to Howard’s demands, Mosby instructed him to give Howard everything

       lest he make the situation worse or get himself hurt. After Howard pistol-

       whipped Williams, Williams dropped all of his cash on the ground and left.

       Howard and Mosby left together and attempted to flee when they were spotted

       by police. When the duo was apprehended, Howard was in possession of

       $278.00, and Mosby, $100.00.


[17]   As stated above, we are also mindful not to speculate as to what may or may

       not have been advantageous trial strategy as counsel should be given deference

       in choosing a trial strategy which, at the time and under the circumstances,

       seems best. Johnson, 832 N.E.2d at 997. The post-conviction court noted that

       Trial Counsel set the tone for her trial strategy by presenting evidence that the


       Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016   Page 7 of 10
       money Mosby had on his person came from sources other than Williams. Trial

       Counsel elicited testimony from Mosby’s co-defendant, Howard, that Mosby

       had nothing to do with the robbery and was asleep at the time. Trial Counsel

       also elicited evidence that Mosby only ran from the police because he had

       marijuana in his pocket and did not want to get caught. Conversely, the jury

       accepted Williams’ rendition of the events, i.e., that Mosby was an active

       participant in the robbery.


[18]   In light of Williams’ testimony regarding Mosby’s threat to give up the money,

       we, like the post-conviction court, conclude that there was no dispute by which

       the jury could conclude that the lesser offense of theft was committed but not

       the greater offense of robbery. That said, we find that Mosby has failed to show

       that his Trial Counsel’s performance was deficient or that he was prejudiced as

       a result of counsel’s failing to tender an instruction on theft as a lesser-included

       offense of robbery.


                                                2. Jury Question

[19]   Lastly, Mosby argues that Trial Counsel rendered him ineffective assistance by

       failing to object to the trial court’s response to a jury question posed during

       deliberations. The record shows that during the course of deliberations, the jury

       asked, “[D]oes receiving money from a robbery make you guilty of robbery?”

       (DA. Tr. p. 424). The court’s response was

               I cannot answer your question. You are the judges of both the law and
               the facts. It is for you to determine whether the State has proven
               elements of the charged offenses beyond reasonable doubt.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016   Page 8 of 10
       (DA. Tr. p. 425). The trial court’s written response was then delivered to the

       jury. Specifically, Mosby argues that he was prejudiced by Trial Counsel’s

       failure to object to the “trial court’s refusal to determine whether and how the

       court and counsel could assist the jury in their deliberative process . . .”

       (Appellant’s Br. p. 6).


[20]   In its findings, the post-conviction court noted the provisions of Indiana Code

       section 34-36-1-6 providing that:

               If, after the jury retires for deliberation:
               (1) there is a disagreement among the jurors as to any part of the
               testimony; or
               (2) the jury desires to be informed as to any point of law arising in the
               case;

               the jury may request the officer to conduct them into court, where the
               information required shall be given in the presence of, or after notice
               to, the parties or the attorneys representing the parties.


[21]   Our supreme court has interpreted the statute to require that juries expressly

       manifest a disagreement about the testimony in order for the statute to apply,

       and that a jury request is not in itself an inherent expression of disagreement

       such that the statute would automatically be triggered. Bouye v. State, 699

       N.E.2d 620, 627-28 (Ind. 1998). In light of the above statute, the post-

       conviction court concluded that “the question did not indicate a disagreement

       among the jurors as to any part of the testimony.” (Appellant’s App. p. 79).


[22]   Here, the parties presented all of the evidence to the jury during the course of

       the two-day trial, and the trial court instructed the jury as to the applicable law,

       Court of Appeals of Indiana | Memorandum Decision 71A05-1503-PC-103 | January 14, 2016   Page 9 of 10
       including the State’s role in proving Mosby’s guilt, the jury’s role in evaluating

       the evidence, and in applying and determining the law and the facts.


[23]   Further, the post-conviction court noted that a response of yes or no would

       have been an equivalent of the trial court directing the jury as to what verdict

       should be. We agree. We note that a trial court is not required to provide

       information “automatically and mechanically every time the jury requests it.”

       Foster v. State, 698 N.E.2d 1166, 1170 (Ind. 1998). Rather, the trial court should

       initially exercise discretion in determining whether it should answer certain

       questions of the jury. Id. Properly exercising its role, the trial court discreetly

       and concisely provided the jury with guidance to facilitate deliberations. In

       light of the foregoing, we conclude that Mosby has failed to prove that Trial

       Counsel provided ineffective assistance for failing to pursue a response from the

       trial court.


                                               CONCLUSION

[24]   Based on the foregoing, we conclude that the post-conviction court properly

       denied Mosby’s petition for post-conviction relief because he did not receive

       ineffective assistance of Trial Counsel.


[25]   Affirmed.


[26]   Najam, J. and May, J. concur




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