MEMORANDUM DECISION
                                                                Nov 04 2015, 8:20 am
Pursuant to Ind. Appellate Rule 65(D), 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
William Byer, Jr.                                        Gregory F. Zoeller
Byer & Byer                                              Attorney General of Indiana
Anderson, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

David L. Lewicki,                                        November 4, 2015.

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1501-CR-30
        v.                                               Appeal from the Madison Circuit
                                                         Court.
                                                         The Honorable David A. Happe,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 48C04-1112-FA-2274




Shepard, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 1 of 10
[1]   David Lewicki appeals from his convictions after a jury trial of one count of
                                                       1
      Class A felony attempted robbery, and one count of Class B felony attempted
                      2
      robbery. We affirm.


                                                           Issues
[2]   Lewicki presents the following issues for our review:

                 I.       Whether the admission of Lewicki’s statement to police
                          was erroneous;
                 II.      Whether the trial court properly instructed the jury on
                          accomplice liability after a question arose during
                          deliberations; and
                 III.     Whether Lewicki’s trial counsel was ineffective by failing
                          to object to evidence and argument about Lewicki’s co-
                          perpetrators’ convictions.

                                   Facts and Procedural History
[3]   Very late on the evening of December 5, 2011, Lewicki, his girlfriend Brittany

      Wellman, his friend Steven Browning, and Browning’s girlfriend Jennifer

      Sprinkle, needed gas money and devised a plan to get some from Humberto

      Pelayo, an acquaintance of Wellman. Lewicki drove the group to Pelayo’s

      trailer in Elwood, where the women lured him to the car with the ruse that they

      were going to buy marijuana. Browning, who was agitated that Pelayo had sex

      with Sprinkle in the trailer before leaving, told Lewicki that they would tell




      1
          Ind. Code § 35-42-5-1 (1984) (robbery serious bodily injury); Ind. Code § 35-41-5-1 (1977) (attempt).
      2
          Ind. Code § 35-42-5-1 (robbery armed with deadly weapon); Ind. Code § 35-41-5-1 (attempt).


      Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015               Page 2 of 10
      Pelayo about buying marijuana, but would instead drive him to a remote spot

      in the country and leave him stranded after stealing his money.


[4]   Following Browning’s directions, Lewicki drove the group to a pig farm and

      parked between a shed and the residence. After Lewicki ordered the frightened

      Pelayo out of the car, Browning and Sprinkle began to beat the victim.

      Browning was hitting Pelayo in the head with a machete Lewicki had

      previously seen in the car when Lewicki approached and grabbed Pelayo’s hand

      demanding all of his money. At that point, Lewicki received a deep cut to his

      forearm, which began bleeding heavily. He retreated to the car.


[5]   Despite Pelayo’s severe injuries including large gashes to his scalp, he walked to

      a residence to ask for help, leaving a significant amount of blood on the porch

      and doorbell, but no one answered. A passerby telephoned for help after seeing

      Pelayo along the roadway.


[6]   The four perpetrators sped away with Wellman at the wheel. As she drove the

      group to St. Vincent Mercy Hospital, Browning and Sprinkle came up with

      stories Lewicki could use to explain his injury. Around 2 a.m., Elwood Police

      Detective Nicholas Oldham was leaving the hospital on an unrelated matter

      when he encountered Wellman and Lewicki in the parking lot. Asked what

      happened, Lewicki claimed he did not remember, and Wellman said Lewicki

      had been in a fight in the country and been robbed. Lewicki’s story later

      changed when he told Madison County Sheriff’s Deputy Juan Galan that while




      Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 3 of 10
       driving down a country road with Wellman they encountered two men fighting

       and Lewicki was injured trying to stop the fight.


[7]    At that point officers considered Lewicki a victim and the three others

       witnesses. They interviewed Browning and Sprinkle. All four stories

       conflicted. Browning’s and Sprinkle’s clothing was stained with blood and dirt,

       and their hands showed blood and abrasions.


[8]    Meanwhile, responding to a dispatch, two officers encountered Pelayo walking

       along the roadside, with deep lacerations to his scalp and the hood of his jacket

       saturated in blood. His money was still in an interior pocket of his jacket.

       Transported to St. Vincent Mercy, Pelayo told Deputy Galan that a girl he

       knew had asked him for money, that he had left with her and others, after

       which he was grabbed by the throat and attacked with a knife. Pelayo recalled

       seeing the image of a pig on the side of a building during the attack.


[9]    Gary Davis, who owned the residence Pelayo had approached seeking help,

       called in to report the blood on his porch. When officers responded to Davis’s

       residence and the spot where Pelayo was found, they managed to locate the

       building at the pig farm where Pelayo was attacked. Officers recovered

       Pelayo’s shoes and hat, and Sprinkle’s purse in the grass. Despite rainy

       conditions, the gravel driveway showed fresh tire tracks.


[10]   As Lewicki’s deep laceration was being sutured, the doctor was notified that a

       patient with severe head trauma had been admitted. Lewicki, who until that

       point had been reluctant to explain his injury to the doctor and was generally

       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 4 of 10
       uncommunicative, immediately became interested in the new patient,

       repeatedly inquiring if he was “still alive.” Tr. p. 450. Lewicki was initially

       given a low dose of Morphine and later a low dose of Dilaudid because he was

       still in pain. Lewicki did not display any adverse reactions to the medication

       and spoke clearly with his doctor.


[11]   Pelayo suffered three very large lacerations to his scalp, bleeding on his brain, a

       dislocated right shoulder, and a punch-like laceration to his left groin. His

       depressed skull fracture was indicative of a brain injury. He continues to

       experience a lot of head pain and sometimes has difficulty thinking clearly.


[12]   Police searched Sprinkle’s vehicle after obtaining her consent. They found the

       machete on the front passenger floorboard where Browning had been seated on

       the way to the hospital. A smaller green-handled folding knife, with its blade

       extended, was located in the back seat where Lewicki had sat. Cell phones

       owned by Sprinkle, Browning, and Wellman were located in the car; Pelayo’s

       cell phone was found in Sprinkle’s possession. DNA testing of various items,

       including the machete, the smaller knife, Browning’s clothing, and Lewicki’s

       clothing, revealed evidence connecting Pelayo with Browning and Lewicki.


[13]   After Lewicki was discharged from the hospital, he was transported to the

       Elwood Police Department, where he waived his Miranda rights and gave a

       recorded statement admitting he knew of the plan to rob Pelayo. The State

       charged Lewicki with attempted robbery causing serious bodily injury,

       attempted robbery using a deadly weapon, and being an habitual offender. A


       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 5 of 10
       jury found Lewicki guilty as charged, and the court imposed an aggregate

       sentence of sixty-five years.


                                    Discussion and Decision
                                    I. Admission of Statement
[14]   Lewicki has argued that his recorded statements to police were not voluntary

       because he had received pain medication at the hospital and had been crying

       while being treated. The trial court rejected this involuntary intoxication

       argument, concluding that although Lewicki appeared to be visibly in pain and

       his speech was affected by the medications, he was able to quickly and

       coherently relay detailed information involving sequences, names, and

       locations of events, answered open-ended questions in narrative form, and was

       able to understand the waiver form.


[15]   We review a trial court’s decisions about admission of evidence for abuse of

       discretion. Lewis v. State, 34 N.E.3d 240 (Ind. 2015). Protection against police

       misconduct is the principle behind ensuring that statements are voluntary. Page

       v. State, 689 N.E.2d 707 (Ind. 1997). A confession is voluntary if in light of the

       totality of the circumstances it is the product of “a rational intellect and not the

       result of physical abuse, psychological intimidation, or deceptive interrogation

       tactics that have overcome the defendant’s free will.” Scalissi v. State, 759

       N.E.2d 618, 621 (Ind. 2001). “The critical inquiry is whether the defendant’s

       statements were induced by violence, threats, promises, or other improper

       influence.” Page, 689 N.E.2d at 711.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 6 of 10
[16]   There is no evidence that Lewicki’s statements were induced by police

       misconduct. Circumstances like intoxication and lack of sleep may be factors

       to consider in determining voluntariness, but a finding of “coercive police

       activity is a necessary prerequisite to finding a confession is not voluntary

       within the meaning of the Due Process Clause of the Fourteenth Amendment.”

       Scalissi, 759 N.E.2d at 621. The trial court considered the impact of the

       medication on Lewicki’s ability to communicate and found that his statement

       was voluntary, and thus admissible. Given the evidence, we cannot conclude

       that this was an abuse of discretion.


               II. Supplementary Instruction During Deliberations
[17]   Lewicki argues the trial court erred by giving an accomplice liability instruction

       after the jury submitted a question during deliberations. The jury asked,

       “Regarding Count II, does the defendant need to be aware of the deadly

       weapon to be considered guilty of aiding, inducing or causing the commission

       of Robbery by means of a Deadly Weapon?” Tr. p. 641. After consulting with

       counsel, the court concluded that the instructions as a whole were incomplete

       and that “there is a gap there, which has led to the question.” Id.


[18]   The court drafted an additional instruction, which was given as follows:

               In order to find the defendant guilty of Count II, it is not
               necessary that the State prove that the defendant knew of the use
               of a deadly weapon. If you find beyond a reasonable doubt that
               the defendant knowingly or intentionally aided, induced or
               caused the robbery committed by another, and that the use of the


       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 7 of 10
                deadly weapon was the natural and probable consequence of that
                offense, you may find the defendant guilty of Count II.
       Id. at 642.


[19]   At trial, Lewicki’s counsel agreed that “it most probably is correct on the law,”

       and he was going to “make a record objection” to the supplementary

       instruction. Id. at 643. The trial court sought to clarify what counsel meant by

       a record objection inquiring, “Just so I’m clear, you’re not objecting that it’s not

       an accurate statement of the law, you’re simply objecting that procedurally we

       shouldn’t be giving additional instructions at this point?” Id. Counsel

       responded, “That is correct, the second option there, Judge.” Id.


[20]   Now on appeal, while conceding that in certain circumstances trial courts are

       permitted to give an omitted instruction, see Jenkins v. State, 424 N.E.2d 1002

       (Ind. 1981), Lewicki claims that the supplementary instruction impermissibly

       expressed the trial court’s view of the facts. When a defendant presents one

       argument at trial and a different argument on appeal, the claims are forfeited.
                                                                                              3
       Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000). So it is here.




       3
         Although Lewicki’s appellate argument is not preserved, the record plainly establishes Lewicki’s knowledge
       of the knives. Lewicki referred to Browning’s machete, as “a big-ass knife” they called “cheese knife”, which
       was located under the seat of the car. Exhibit Vol. I, p. 16. Lewicki testified that the presence of his DNA on
       the smaller green knife, which was found by police on the floor where Lewicki sat on the way to the hospital,
       was the result of his handling the knife on many prior occasions. Tr. p. 555.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015             Page 8 of 10
                      III. Ineffective Assistance of Trial Counsel
[21]   Even though claims of ineffective assistance of trial counsel are permitted on

       direct appeal, a post-conviction proceeding typically is the method by which

       new facts not present in the trial record are developed with respect to that claim.

       Jewell v. State, 887 N.E.2d 939, 941-42 (Ind. 2008). Once that issue is raised on

       direct appeal, the question of ineffective assistance of counsel is foreclosed from

       being pursued again in post-conviction proceedings. Id. at 942.


[22]   To establish a claim of ineffective assistance of trial counsel, a defendant must

       establish: (1) deficient performance; (2) that resulted in prejudice to the

       defense. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Trial counsel is

       afforded considerable discretion in the choice of strategy and tactics, to which

       we accord deference. Id.


[23]   Lewicki claims that counsel was ineffective for failing to object to evidence

       offered by the State of sentencing orders and judgments of conviction of

       Browning, Wellman, and Sprinkle. Although that evidence is normally not

       admissible to establish a defendant’s guilt, the lack of objection makes sense in

       terms of the overall trial strategy. Lewicki maintained that he was aware of the

       plan, but attempted to help Pelayo. He claimed that the others were the real

       perpetrators. Evidence of the co-perpetrators’ convictions furthered that

       strategy, and it was not unreasonable to pursue it.


                                                Conclusion
[24]   In light of the foregoing, we affirm the judgment of the trial court.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 9 of 10
[25]   Affirmed.


[26]   Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-30 | November 4, 2015   Page 10 of 10
