FOR PUBLICATION
                                                      Jan 15 2015, 8:49 am
                                                                 Jan 15 2015, 8:49 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:
PAULA M. SAUER                                GREGORY F. ZOELLER
Danville, Indiana                             Attorney General of Indiana

                                              J.T. WHITEHEAD
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

DAVID PAUL BROWN,                             )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )        No. 32A01-1405-CR-194
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE HENDRICKS SUPERIOR COURT
                           The Honorable Mark A. Smith, Judge
                            Cause No. 32D04-1210-FD-1063


                                   January 15, 2015

                             OPINION – FOR PUBLICATION

VAIDIK, Chief Judge
                                      Case Summary

       David Paul Brown appeals his conviction for Class D felony theft. He contends

that his trial counsel was ineffective for failing to object to a portion of his videotaped

interview with a detective as hearsay and for not tendering a jury instruction on criminal

conversion as a lesser-included offense of theft. Although defense counsel should have

requested an admonishment regarding the portion of the interview containing the

detective’s statements, we find no prejudice in light of the other evidence presented at trial.

In addition, we find that defense counsel was not ineffective for not tendering a jury

instruction on criminal conversion as a lesser-included offense of theft because counsel

employed a reasonable all-or-nothing trial strategy. We therefore affirm the trial court.

                              Facts and Procedural History

       The facts most favorable to the verdict are as follows. Chad Miller and his wife

owned a home and approximately five acres of land in Brownsburg, Indiana. The property

included an older barn and a newer pole barn that was built in 2009. In 2012 Chad placed

an advertisement to rent the property because he and his family were moving temporarily

to Florida.

       Brown answered the ad in the summer of 2012 and went to look at the property.

Chad told Brown that the lease would include the home, the land, and only the older barn

because he and his family were going to store the things they were not taking with them to

Florida in the pole barn. Chad and Brown eventually agreed on the terms and signed a

lease in late June. According to the lease, Brown and his family took possession on July

25, 2012; rent was $1500/month with a security deposit of $1500. Notably, Chad did not


                                              2
give Brown permission or a key to access the pole barn. Chad told Brown that he had not

gotten around to cleaning out the old barn, but Brown could “do what [he] want[ed] with

that.” Tr. p. 194.

       Chad flew back from Florida on August 20, 2012, to mow the grass. When he

returned, he noticed that the deadbolt to the pole barn was unlocked although it had been

locked when he left for Florida. Chad owned a hand truck that he could not locate. Brown

told Chad that Chad had left the hand truck outside and that Brown was going to fix it for

him. But Chad was certain that he did not leave it outside. At that point, Chad became

suspicious and thought that someone had been inside his pole barn. As a precaution, Chad

took pictures of his belongings in the pole barn as well as the hour meter on his very

expensive Kubota lawn mower. Chad returned to Florida on August 26.

       Rent was due September 1, 2012. When Chad had not received rent from Brown

on September 5, Chad called him. Chad again called Brown on September 10 when he still

had not received rent. Both times, Brown had multiple excuses for why he had not paid

rent. When October 1 came and Brown still had not paid rent, Chad returned to Indiana to

start the eviction process. Chad called Brown when he arrived in Indiana. Brown

suggested that Chad should forgive September’s rent because Brown had done some work

on the house. Chad came to look at the house but said that because the work was not

authorized, Brown still had to pay September’s rent.

       While Chad was at the house, he went to the pole barn to check his lawn mower.

He immediately noticed cigarette butts in the cup holder—Brown was a smoker—and three

extra hours on the hour meter when compared to the photograph he had taken on his


                                            3
previous trip to Indiana. Chad also noticed that some boxes were open that had been closed

before and that some boxes had been moved. Chad called the Hendricks County Sheriff’s

Department to make a report. At that time, Chad did not notice anything missing.

       When Chad returned to the property two days later, he realized that his slot machine

was missing from the pole barn. Chad recalled that Brown’s wife, Elizabeth, had an antique

store in Broad Ripple, so he went to the store to see if his slot machine was there. Chad,

pretending to be a shopper, asked Elizabeth if she had a slot machine for sale. She said

yes, because her husband had come “across a . . . slot machine that some guy was trying to

scrap and so [he] offered him money for it and he bought it from him.” Id. at 175. Chad

continued to feign interest, and after Elizabeth showed him the slot machine, he took a

picture of it. The slot machine was damaged and missing the quarters from inside.

Elizabeth offered to sell the slot machine for $50.00. Id. at 177. Chad then showed

Elizabeth a picture of his son playing the same slot machine and said “this is my slot

machine.” Id. Elizabeth appeared shocked. Chad told her he would be evicting their

family and that he wanted his slot machine back. When Chad left, he took his slot machine

back to the pole barn and called the Sheriff’s Department.

       Deputy Teresa Woods interviewed Brown in October 2012. Brown said the slot

machine was in the old barn and that he took it out in order to refurbish it and return it to

Chad. Id. at 227, 230. Detective Aaron Payne later interviewed Brown at the Sheriff’s

Department. The interview was videotaped. Brown said that the slot machine was in the

old barn and that he was “going to restore it [for Chad] as a gesture of goodwill.” Id. at

245.


                                             4
        The State charged Brown with Class D felony theft for the slot machine and alleged

that he was a habitual offender.1 At trial, the State admitted the videotaped interview of

Brown and Detective Payne (Exhibit 14). The interview was redacted to comply with the

trial court’s ruling on the State’s motion in limine.2 See Appellant’s App. p. 100. After

the State played the redacted videotape, it rested. The jury found Brown guilty of theft. In

the second phase of trial, the jury determined that Brown was a habitual offender. The trial

court sentenced Brown to 180 days in the Indiana Department in Correction, enhanced by

915 days for the habitual-offender finding, which was to be served at the Hendricks County

Work Release Center.

        Brown now appeals.

                                      Discussion and Decision

        Brown contends that his trial counsel was ineffective. To allege a violation of the

Sixth Amendment right to effective assistance of counsel, a defendant must establish the

two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a

defendant must show that counsel’s performance was deficient. Id. at 687. This requires

a showing that counsel’s representation fell below an objective standard of reasonableness

and that counsel made errors so serious that counsel was not functioning as “counsel”

guaranteed to the defendant by the Sixth Amendment.                      Id.   Even the finest, most




        1
         The State also charged Brown with Class D felony receiving stolen property regarding “a utility
dump style trailer.” Appellant’s App. p. 12. But because Brown was acquitted of this count, we do not
include any facts related to the trailer.
        2
         The State filed a motion in limine prohibiting the defense from mentioning an alleged battery that
Chad committed against Brown after he found out about the slot machine. The trial court granted the
motion in limine. See Tr. p. 34-41.
                                                    5
experienced criminal defense attorneys may not agree on the ideal strategy or most

effective way to represent a client; therefore, under this prong, we will assume that counsel

performed adequately and defer to counsel’s strategic and tactical decisions. Smith v. State,

765 N.E.2d 578, 585 (Ind. 2002), reh’g denied.              Isolated mistakes, poor strategy,

inexperience, and instances of bad judgment do not necessarily render representation

ineffective. Id.

       Second, a defendant must show that the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687. To establish prejudice, a defendant must show that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694. A reasonable probability is one

that is sufficient to undermine confidence in the outcome. Id.

       These prongs are “separate and independent inquiries,” and a petitioner’s “failure

to establish either prong will cause the claim to fail.” State v. Greene, 16 N.E.3d 416, 419

(Ind. 2014) (quotation omitted). In addition, because Brown alleges ineffective assistance

of counsel on direct appeal, he is foreclosed from raising it on post-conviction. See Woods

v. State, 701 N.E.2d 1208, 1220 (Ind. 1998), reh’g denied.

                                   I. Videotaped Interview

       First, Brown argues that his trial counsel was ineffective for failing to object to a

portion of his videotaped interview with Detective Payne. When the videotaped interview

was played for the jury at trial, it comprised ten pages in the trial transcript; the portion that

Brown now challenges consists of only one page:




                                                6
        DETECTIVE PAYNE: As far as the slot machine goes you can’t take his
        property at all; he didn’t give you permission to take that slot machine
        anywhere to do anything with.

        MR. BROWN: No, he didn’t.

        DETECTIVE PAYNE: You just can’t do that; I don’t care if he had an old
        rusty tractor sitting out back.

        MR. BROWN: (Inaudible).

        DETECTIVE PAYNE: You can’t take his property at all. He didn’t give you
        permission to take that slot machine anywhere to do anything with.

        MR. BROWN: No he didn’t.

        DETECTIVE PAYNE: You just can’t do that. I don’t care if [he] had an old
        rusty tractor sitting out back.

        MR. BROWN: Well I wasn’t trying to move the tractor.

        DETECTIVE PAYNE: It didn’t matter if you don’t have permission to take
        that old rusty tractor or that slot machine anywhere or do anything with it.
        You just can’t do it regardless of whether he rents the place or not; you just
        can’t take his (inaudible).

        MR. BROWN: Yeah, I mean, you know, when you put it like that, it is I, you
        know, when I did it I figured that me and him were on a good relationship
        that I could, you know, I could do that for him.

Tr. p. 300-01. Brown argues that Detective Payne’s statements are inadmissible hearsay

and that defense counsel should have requested a limiting instruction.3




        3
           Brown also argues that Detective Payne’s statements invaded the province of the jury under
Indiana Evidence Rule 704(b). See Appellant’s Br. p. 11 (“Detective Payne’s recorded statements left the
jury firmly convinced . . . that Brown had engaged in misconduct in taking [Chad’s] property without
permission.”). Evidence Rule 704(b) provides: “Witnesses may not testify to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified
truthfully; or legal conclusions.” Because Brown has consistently admitted taking Chad’s slot machine,
Detective Payne’s comments did not invade the province of the jury. And contrary to Brown’s arguments
on appeal, in the portion that Brown challenges Detective Payne did not opine that Brown was “a liar and
a thief.” See Appellant’s Reply Br. p. 3.
                                                     7
       “‘Hearsay’ means a statement that: (1) is not made by the declarant while testifying

at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter

asserted.” Ind. Evidence Rule 801(c). Indiana Evidence Rule 801(d)(2)(A) provides that

statements made by a party opponent are not hearsay. Accordingly, Brown’s statements

are admissible as those of a party-opponent. As for Detective Payne’s statements, which

put Brown’s statements in context, they would have been admissible if defense counsel

would have simply requested a limiting instruction for the jury. See Strong v. State, 538

N.E.2d 924, 928 (Ind. 1989) (holding that the “statements by the police officer were not

inadmissible hearsay because they were not offered as proof of the facts asserted therein,”

and the “limited function of the police questions was explained to the jury at the time the

recording was played with [an] admonishment from the trial judge at the request of defense

counsel”).4

       In those cases where an admonishment was not given to the jury, our Supreme Court

has held that even though the jury should have been advised that the police officer’s

statements were not evidence, the admission of the police officer’s statements can be

harmless in light of the other evidence presented at trial. See Lampkins v. State, 778 N.E.2d



       4
           The admonishment in Strong provided:

       On the tape there are some statements made by Mr. Loy and by Detective Rhodes, the other
       police officer, and I want to instruct you that what the police officers say in the course of
       the interview, the police officers [sic] information, whatever they say is not evidence and
       is not to be considered by you as evidence. But is to be considered only as questioning and
       questions in order to elicit information to draw out information from Mrs. Strong. There
       are certain things that the police officers say and representations that they make that may
       or may not be true. They are not to be considered as evidence other than to bring out
       information from Mrs. Strong. Okay.

538 N.E.2d at 928.
                                                    8
1248, 1251-52 (Ind. 2002) (finding error harmless because in a second interview, the

defendant confessed to shooting the victim twice in the back and testified as such at trial);

see also Wilkes v. State, 917 N.E.2d 675, 686 (Ind. 2009), reh’g denied. Accordingly, even

assuming that defense counsel was deficient for failing to request an admonishment, Brown

has failed to show that defense counsel’s deficient performance prejudiced him because we

find the error harmless in light of the other evidence presented at trial. Specifically, a

different officer, Deputy Woods, interviewed Brown in October 2012, and Brown told her

that the slot machine was in the old barn and that he took it out in order to refurbish it and

return it to Chad. But Chad testified at trial that the slot machine was in the locked pole

barn and that he did not give Brown permission to enter the pole barn, let alone to take his

slot machine out of the barn. In addition, Chad testified that he found the slot machine in

Brown’s wife’s antique store and she offered to sell it to him for $50.00. Thus, Brown has

failed to prove that his trial counsel was ineffective for failing to object to the limited

portion of his videotaped interview with Detective Payne and request an admonishment.

                                    II. Jury Instruction

       Next, Brown argues that his trial counsel was ineffective for not tendering a jury

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

Class D felony theft. A person who knowingly or intentionally exerts unauthorized control

over property of another person commits Class A misdemeanor criminal conversion. Ind.

Code Ann. § 35-43-4-3 (West 2012). Class D felony theft includes the additional element

that the person have the intent to deprive the other person of any part of the property’s

value or use. Ind. Code Ann. § 35-43-4-2(a) (West 2012). Courts have consistently held


                                              9
that criminal conversion is an inherently lesser-included offense of theft because it can be

established by proof of less than all of the material elements of theft. Lane v. State, 953

N.E.2d 625, 630 n.4 (Ind. Ct. App. 2011).

       Our Supreme Court has held that 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 and where that choice proves

detrimental to the defendant. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). “It is

not sound policy for this Court to second-guess an attorney through the distortions of

hindsight.” Id. (quotation omitted).

       Here, defense counsel employed an all-or-nothing strategy, asking the jury during

closing argument to find that the evidence did not support a finding beyond a reasonable

doubt that Brown intended to deprive Chad of the value or use of any part of the slot

machine because he had intended to return it. Tr. p. 471. Without the instruction on

criminal conversion, the jury was not given an alternative other than to convict as charged

on theft (which required the additional element) or to acquit. If defense counsel had

requested an instruction on criminal conversion, Brown would have been entitled to the

instruction.5 This would have all but guaranteed a conviction. But defense counsel chose

a strategy that, if it had been successful, would have left Brown with no criminal

conviction. Given the facts of this case, the strategy, although risky, was not unreasonable.

Brown has therefore failed to establish that defense counsel’s representation fell below an



       5
         Brown concedes on appeal that the evidence established criminal conversion. See Appellant’s
Br. p. 14 (“The uncontradicted evidence established all of the essential elements of conversion.” &
“Brown’s actions constituted either theft or conversion—one or the other.”).
                                                10
objective standard of reasonableness and that counsel made errors so serious that counsel

was not functioning as “counsel” guaranteed to the defendant by the Sixth Amendment.6

We therefore do not address the prejudice prong.

        Affirmed.

BAKER, J., and RILEY, J., concur.




        6
         In a footnote, Brown alleges numerous additional instances of ineffective assistance of counsel.
See Appellant’s Br. p. 12 n.7. Brown, however, does not make a separate analysis using the two Strickland
prongs. These issues are therefore waived. Waiver notwithstanding, we find no ineffective assistance of
counsel on these additional grounds.
                                                   11
