MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Oct 17 2016, 9:05 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Deidre R. Eltzroth                                       Eric P. Babbs
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey S. Heironimus,                                   October 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1602-PC-394
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Kelli E. Fink,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1306-PC-17



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016        Page 1 of 11
                                             Case Summary
[1]   Jeffrey Heironimus appeals the post-conviction court’s denial of his petition for

      post-conviction relief. We affirm.


                                                    Issues
[2]   Heironimus raises two issues, which we restate as:


                       I.      whether he received effective assistance of trial
                               counsel; and

                       II.     whether he received effective assistance of
                               appellate counsel.


                                                     Facts
[3]   In May 2011, Heironimus robbed the First Federal Savings Bank in Evansville.

      While talking to a bank employee, he insinuated that he had a gun by keeping

      his hand in his backpack and demanding money. He took over $3900 in cash,

      which included $200 in recorded bait money. The State charged Heironimus

      with Class C felony robbery and alleged that he was an habitual offender. With

      respect to the robbery charge, the State alleged that Heironimus “did knowingly

      and by threat of force” take property from a bank employee. Direct Appeal

      App. p. 42. Heironimus was convicted of robbery and found to be an habitual

      offender. He appealed his conviction, challenging the trial court’s admission of

      evidence of witness identifications made of him after police officers’ warrantless

      entry into an accomplice’s residence. We affirmed. See Heironimus v. State, No.

      82A01-1204-CR-152 (Ind. Ct. App. Nov. 1, 2012).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 2 of 11
[4]   Heironimus then filed a petition for post-conviction relief, which was later

      amended. He argued that his trial counsel was ineffective for failing to file a

      motion for directed verdict and that his appellate counsel was ineffective for

      failing to argue on appeal that the evidence was insufficient to sustain the

      conviction. Both arguments concerned the State’s allegation that Heironimus

      took property from the bank employee by “threatening the use of force” rather

      than “by putting any person in fear.” See Ind. Code § 35-42-5-1. After a

      hearing, the post-conviction court denied Heironimus’s petition. The post-

      conviction court entered findings of fact and conclusions thereon denying

      Heironimus’s petition. Heironimus now appeals.


                                                  Analysis
[5]   Heironimus argues that the post-conviction court’s denial of his petition is

      clearly erroneous. A court that hears a post-conviction claim must make

      findings of fact and conclusions of law on all issues presented in the

      petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-

      conviction Rule 1(6)). “The findings must be supported by facts and the

      conclusions must be supported by the law.” Id. Our review on appeal is limited

      to these findings and conclusions. Id. Because the petitioner bears the burden

      of proof in the post-conviction court, an unsuccessful petitioner appeals from a

      negative judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a

      negative judgment must show that the evidence as a whole ‘leads unerringly

      and unmistakably to a conclusion opposite to that reached by the trial

      court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 3 of 11
      denied). Under this standard of review, “[we] will disturb a post-conviction

      court’s decision as being contrary to law only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion.” Id.


                              I. Ineffective Assistance of Trial Counsel

[6]   Heironimus argues that the post-conviction court was clearly erroneous when it

      determined that he was not denied effective assistance of trial counsel. To

      prevail on a claim of ineffective assistance of counsel, a petitioner must

      demonstrate both that his or her counsel’s performance was deficient and that

      the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State,

      729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668,

      687, 104 S. Ct. 2052, 2064 (1984)), cert. denied. A counsel’s performance is

      deficient if it falls below an objective standard of reasonableness based on

      prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.

      2002). To meet the appropriate test for prejudice, the petitioner 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. “A reasonable

      probability is a probability sufficient to undermine confidence in the

      outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy

      either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027,

      1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved

      by a prejudice inquiry alone. Id.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 4 of 11
[7]   According to Heironimus, his trial counsel was deficient for failing to file a

      motion for directed verdict regarding the robbery charge. In order for a trial

      court to grant a directed verdict, there must be a complete lack of evidence on a

      material element of the crime or the evidence must be without conflict and

      susceptible to only an inference in favor of the defendant’s innocence. Huber v.

      State, 805 N.E.2d 887, 890 (Ind. Ct. App. 2004). At the time of the offense,

      Indiana Code Section 35-42-5-1 provided: “A person who knowingly or

      intentionally takes property from another person or from the presence of

      another person: (1) by using or threatening the use of force on any person; or (2)

      by putting any person in fear; commits robbery, a Class C felony.” The State

      alleged that Heironimus knowingly took property from the bank employee by

      threatening force against the employee. Heironimus argues that a motion for

      directed verdict would have been granted because there was no evidence to

      show that he threatened the use of force against the bank employee.


[8]   On this issue, the post-conviction court found:

                     2. Petitioner’s first claim was that he was denied the
                        effective assistance of trial counsel due to omissions
                        and errors of trial counsel that undermined confidence
                        in the outcome of the case. The specific facts alleged
                        by Petitioner to support this first claim were that
                        Petitioner was charged and convicted of robbery for
                        having taken money from a bank teller “by using or
                        threatening the use of force,” but that the evidence at
                        trial failed to support this element of the charge.
                        Petitioner’s claim is that if counsel had moved for a
                        directed verdict on this issue, there is a reasonable
                        probability that this argument would have been

      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 5 of 11
                           successful and Petitioner would not have been
                           convicted of robbery.


                     3. The charging information in Petitioner’s case alleges
                        that the offense was committed “by threat of force,” but
                        does not allege the actual “use of force.”


                                                     *****


                     11. Mr. Gooden [trial counsel] testified that he was aware
                         during trial of the issue regarding the sufficiency of the
                         evidence on the threat of force element. However, he
                         did not want to bring the issue to the attention of the
                         State so the prosecutor could then fix the issue. Mr.
                         Gooden also indicated based on his past experiences,
                         he did not believe that a motion for directed verdict
                         would be successful. As trial counsel, Mr. Gooden’s
                         decision not to move for a directed verdict was one of
                         strategy.


                     12. Even if Mr. Gooden had moved for a directed verdict,
                         it is unlikely that his motion would have been
                         successful.


      App. Vol. II pp. 90, 92.


[9]   Relying on Simmons v. State, 455 N.E.2d 1143 (Ind. Ct. App. 1983), and Maga v.

      State, 508 N.E.2d 803 (Ind. 1987), the post-conviction court also concluded:


                     17. The teller in Petitioner’s case testified that the suspect
                         who robbed the bank had his hood pulled up so that he
                         [sic] his face was only partially visible and his hair
                         could not be seen. The man put a backpack up on the
                         teller station, and the man had one hand in the
      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 6 of 11
                            backpack which led the teller to believe that the man
                            might have a gun in the backpack. The man told the
                            teller that he wanted her to put money in the backpack
                            and told her not to push any alarms. After the teller
                            put money in the backpack, the man indicated he
                            wanted even more money. The teller testified that she
                            was terrified, very scared and very nervous at the time.
                            She also described her state as hysterical.


                      18. Petitioner’s attempt to conceal his appearance, the fact
                          that he put his hand in his backpack when he asked for
                          money, and that he told the teller to give him money
                          and not to push any alarms all support the jury’s
                          finding that the offense was committed by the “threat
                          of force.” Petitioner’s behavior understandably made
                          the teller feel terrified, scared and nervous and also
                          understandably led the teller to believe that Petitioner
                          had a gun. Petitioner’s words and gestures, along with
                          the appearance that he might have a gun, establish the
                          element of “threat of force.”


       App. Vol. II pp. 93-94.


[10]   We addressed a similar issue in Simmons, 455 N.E.2d at 1147-48. There, the

       defendant robbed a liquor store by demanding money and putting his hand to a

       bulge at his waist, which the manager thought was a gun. However, when the

       defendant was arrested minutes later, the police found no weapon. The jury

       found him guilty of Class C felony robbery by using or threatening the use of

       force. On appeal, this court engaged in a lengthy analysis of the statutory

       language, the prior statute’s language, and case law on the issue. We concluded

       that the defendant’s “words, the bulge under his shirt, and his gestures toward


       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 7 of 11
       that bulge, all creating the inference he possessed a gun, were sufficient to

       indicate he was threatening the use of force upon [the manager].” Simmons, 455

       N.E.2d at 1148. Citing Simmons, our supreme court later noted that “[t]he

       threat of force can be established through the appearance that a person had a

       gun, and by the words and gestures of the person.” Maga v. State, 508 N.E.2d

       803, 804 (Ind. 1987); see also Gray v. State, 903 N.E.2d 940, 946 (Ind. 2009)

       (directing the entry of a conviction for Class C felony robbery rather than a

       Class B felony robbery where the defendant implied that he had a gun in his

       pocket but there was no evidence that he actually had a weapon).


[11]   Here, the bank employee testified that Heironimus entered the bank wearing a

       hooded sweatshirt with the hood pulled up over his head so that she could not

       see much of his face. He was carrying a backpack and had his left hand inside

       the backpack. He put his backpack on the counter and told the teller to give

       him all of the money and not to push any alarms. Based on the position of the

       backpack and his hand, the teller thought that “he had perhaps a gun in it.” Tr.

       p. 24. She was “terrified, very scared, just very nervous.” Id. at 25.

       Heironimus argues that the teller “seemed to realize that he was not armed

       soon thereafter when he passed the bag to her.” Appellant’s Br. p. 8.


[12]   For a motion for directed verdict to be successful, there must have been a

       complete lack of evidence regarding threatening the use of force or the evidence

       must be without conflict and susceptible to only an inference in favor of the

       Heironimus’s innocence. Huber, 805 N.E.2d at 890. As in Simmons,

       Heironimus’s words and actions implied that he had a gun and were sufficient

       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 8 of 11
       to indicate he was threatening the use of force upon the teller. Consequently,

       even if his trial counsel had filed the motion for directed verdict, there is no

       reasonable probability that the motion would have been successful or that the

       result of the proceeding would have been different. The trial court’s denial of

       Heironimus’s petition for post-conviction relief on this issue is not clearly

       erroneous.


                            II. Ineffective Assistance of Appellate Counsel

[13]   Next, Heironimus argues that he was denied effective assistance of appellate

       counsel. The standard for gauging appellate counsel’s performance is the same

       as that for trial counsel. Allen, 749 N.E.2d at 1166. Heironimus must

       demonstrate that his appellate counsel was deficient and that he was prejudiced

       by the deficient performance. Ben-Yisrayl, 729 N.E.2d at 106.


[14]   Heironimus argues that his appellate counsel should have raised a claim that

       the evidence was insufficient to sustain the conviction for robbery. Because the

       strategic decision regarding which issues to raise on appeal is one of the most

       important decisions to be made by appellate counsel, appellate counsel’s failure

       to raise a specific issue on direct appeal rarely constitutes ineffective assistance.

       See Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana Supreme Court

       has adopted a two-part test to evaluate the deficiency prong of these claims: (1)

       whether the unraised issues are significant and obvious from the face of the

       record; and (2) whether the unraised issues are “clearly stronger” than the

       raised issues. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied. If

       this analysis demonstrates deficient performance by counsel, the court then
       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 9 of 11
       examines whether the issues that appellate counsel failed to raise “would have

       been clearly more likely to result in reversal or an order for a new trial.” Id.


[15]   Specifically, Heironimus argues that appellate counsel should have argued that

       the evidence was insufficient to show that he threatened the use of force. On

       this issue, the post-conviction court found:

                      19. Petitioner’s second argument . . . was that Petitioner
                          received ineffective assistance of appellate counsel
                          when counsel failed to challenge the conviction
                          appropriately, relying instead, on a non-meritorious
                          argument. In the facts alleged to support this second
                          argument, Petitioner contends that if appellate counsel
                          had argued that the State lacked sufficient evidence to
                          convict Petitioner of the robbery charge, there is a
                          reasonable probability that Petitioner’s robbery
                          conviction would have been overturned and the
                          sentence vacated. This argument is also based on the
                          claim that there was not enough evidence of the “threat
                          of force.”


                                                    *****


                      22. Because this Court has found in favor of the State as to
                          the sufficiency of the evidence issue, this Court finds
                          that it was not ineffective for appellate counsel to fail to
                          raise the issue on appeal.


       App. Vol. II pp. 94-95.


[16]   Even if Heironimus’s appellate counsel had raised the sufficiency issue, we

       cannot say the argument would have been successful. When reviewing the


       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 10 of 11
       sufficiency of the evidence needed to support a criminal conviction, we consider

       only the evidence supporting the judgment and any reasonable inferences that

       can be drawn from such evidence. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

       2009). We affirm if there is substantial evidence of probative value such that a

       reasonable trier of fact could have concluded the defendant was guilty beyond a

       reasonable doubt. Id. As we have noted, based on Heironimus’s words and

       actions, there was evidence to support the jury’s finding that he threatened the

       teller with force. See Simmons, 455 N.E.2d at 1148. The sufficiency issue would

       not have been clearly more likely to result in reversal. The post-conviction

       court’s denial of Heironimus’s argument on this issue is not clearly erroneous.


                                                 Conclusion
[17]   The post-conviction court’s denial of Heironimus’s petition for post-conviction

       relief is not clearly erroneous. We affirm.


[18]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016   Page 11 of 11
