MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Mar 24 2020, 9:42 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
John Pinnow                                              J.T. Whitehead
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin Scott Devers,                                     March 24, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1893
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Respondent.                                     Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1805-PC-2954



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020                    Page 1 of 13
                                              Case Summary

[1]   Dustin Devers appeals the post-conviction court’s (“PC court”) denial of his

      petition for post-conviction relief (“PCR”). We affirm.


                                                      Issue

[2]   Devers raises two issues on appeal, which we consolidate and restate as

      whether Devers received ineffective assistance of trial and appellate counsel.


                                                     Facts

[3]   The underlying facts of Devers’ conviction for intimidation, a Level 5 felony,

      were set out in this Court’s decision on direct appeal as follows:


              On January 28, 2017, Edward Brandt called 911 and reported
              that Devers was inside an Evansville home, armed with a knife,
              and had threatened the lives of all of the home’s occupants. . . .
              Officer Matthews approached the home and found the interior
              side door open and the screen door closed. As he approached,
              Officer Mat[t]hews could hear a male voice yelling and arguing
              with someone. Once he reached the door, Officer Mat[t]hews
              could see inside the home and saw Devers and a younger
              woman, later identified as Devers’s girlfriend, Lindsay Clark,
              sitting at a kitchen table. An older woman, later identified as
              Devers’s grandmother, Donna Devers (Donna), was standing
              behind Clark. None of the people inside noticed Officer
              Matthews, and he continued to observe the situation unfold as he
              waited for backup to arrive.


              Devers continued to argue and shout at Clark while Donna tried
              to calm him down. Devers then grabbed a knife and said to
              Clark, “okay, are you ready for this? I’m going to ram this
              through your head, and I’m going to go away for a long time.”

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020   Page 2 of 13
               Transcript Vol. 2 at 16. Devers then held the knife up to Clark’s
               throat. At about that time, several backup officers arrived, and
               while the officers were formulating a plan, Devers somehow fell
               to the ground. The officers then entered the home and Officer
               Matthews used his taser to subdue Devers, allowing the other
               officers to take him into custody.


               As a result of these events, the State charged Devers with Level 5
               felony intimidation and filed a habitual offender allegation. . . .


      Devers v. State, No. 82A04-1708-CR-1749, slip op. at 1 (Ind. Ct. App. Feb. 28,

      2018).


[4]   The charging information alleged that Devers “did communicate a threat to

      Lindsey Clark, another person, with the intent that Lindsey Clark be placed in

      fear of retaliation for a prior lawful act, to-wit: disagreeing with the defendant;

      and in committing said act the defendant drew or used a deadly weapon, to-wit:

      [a] knife. . . .” Direct Appeal Appellant’s App. Vol. II p. 15.


[5]   At trial, Devers’ theory of the case was that he did not threaten to harm Clark

      but, instead, threatened to harm himself. Devers’ grandmother testified that

      Devers “held [a kitchen knife] to his [own] throat.” Direct Appeal Tr. Vol. II p.

      96. 1




      1
       There is a variance in the page numbers because the direct appeal Volume II transcript page numbers start
      on page four. We will use the page numbers on the bottom right of the direct appeal transcript instead of the
      PDF page numbers.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020                   Page 3 of 13
[6]   In the rebuttal closing argument, the State argued:


              If you believe Officer Matthews’ testimony about what he
              observed that’s corroborated by the 911 call, the defendant is
              guilty. If you believe the defendant’s version of what happened,
              that he held a knife to his throat, with the intent to place Lindsay
              Clark in fear that he might actually kill himself if she didn’t go
              upstairs with him, . . . he’s still guilty. That’s still [i]ntimidation,
              so under either circumstance, he’s guilty as charged, . . .


      Id. at 132-33. After a jury found Devers guilty of intimidation, a Level 5 felony,

      Devers appealed. Devers’ appellate counsel argued prosecutorial misconduct in

      the State’s closing arguments 2 and that Devers’ sentence was inappropriate.

      Our Court affirmed Devers’ conviction and sentence.


[7]   On May 21, 2018, Devers filed his PCR petition, which he later amended. The

      amended PCR petition alleged that Devers received ineffective assistance of

      trial and appellate counsel because: (1) trial counsel should have objected to the

      State’s closing argument that threatening to kill oneself constitutes a “threat”

      for purposes of intimidation; (2) trial counsel should have requested a specific

      jury unanimity instruction; and (3) appellate counsel should have argued these

      two points on appeal.


[8]   The PC court held a hearing on March 13, 2019. Devers called both his prior

      trial and appellate counsel to testify. Attorney Barry Blackard represented




      2
       The prosecutorial misconduct argument was due to another statement made by the State in closing
      arguments and is not at issue in Devers’ PCR petition.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020               Page 4 of 13
       Devers at his jury trial. Attorney Blackard testified his strategy at trial was: (1)

       to argue that Devers did not communicate a threat to Clark; and (2) to create a

       credibility question because neither Clark nor Edward Brandt, who called 911

       to report the crime, testified at trial. 3 Attorney Blackard testified that he studied

       the intimidation statute closely prior to Devers’ trial and was unable to find any

       cases on whether a threat to commit suicide constituted a threat under the

       intimidation statute.


[9]    When Attorney Blackard was questioned about his reason for not objecting to

       the State’s closing argument regarding Devers’ alleged threat to commit suicide,

       Attorney Blackard testified that he does not like to object during closing

       argument if it could draw attention to an issue. Additionally, Attorney

       Blackard testified that he was satisfied with the jury instructions tendered and

       did not deem further instructions to be warranted.


[10]   Attorney Scott Barnhart, who served as Devers’ appellate counsel on direct

       appeal, testified that: (1) he did not raise the issue regarding the State’s

       definition of “threat” in closing arguments because Attorney Blackard did not

       object at trial; and (2) Barnhart does not recall whether he considered raising an

       argument with regard to an additional jury unanimity instruction; however, he

       did not believe he researched cases on this issue.




       3
           Clark appeared to “dodge service.” PCR Tr. Vol. II p. 21.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020   Page 5 of 13
[11]   On August 1, 2019, the trial court entered findings of fact and conclusions of

       law denying Devers’ PCR petition. Devers now appeals.


                                                    Analysis

[12]   Devers appeals from the denial of his PCR petition. Our Supreme Court has

       stated:


               The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence. When appealing from the denial of post-conviction
               relief, the petitioner stands in the position of one appealing from
               a negative judgment. 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. [Where, as
               here, a post-conviction court has made findings of fact and
               conclusions of law in accordance with Indiana Post-Conviction
               Rule 1(6), 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.


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

       citations omitted). As the clearly erroneous standard “is a review for

       sufficiency of evidence, we neither reweigh the evidence nor determine the

       credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

       “Rather, we ‘consider only the evidence that supports that judgment and the

       reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020   Page 6 of 13
       v. State, 738 N.E.2d 253, 258-59 (Ind. 2000), cert. denied, 534 U.S. 1164, 122 S.

       Ct. 1178 (2000)).


[13]   Each of Devers’ arguments relates to whether a threat to commit suicide can be

       considered intimidation and whether the issue was properly addressed by

       Devers’ trial and appellate counsel. Pursuant to the version of Indiana Code

       Section 35-45-2-1(a)(2) 4 in effect in January 2017, a person commits

       intimidation, a Class A misdemeanor, if the person “communicates a threat to

       another person, with the intent . . . (2) that the other person be placed in fear of

       retaliation for a prior lawful act[.]” The offense becomes a Level 5 felony if

       “while committing it, the person draws or uses a deadly weapon[.]” Ind. Code

       § 35-45-2-1(b)(2). “Threat” is defined by Indiana Code Section 34-45-2-1(d), in

       relevant part, as:


                  “Threat” means an expression, by words or action, of an
                  intention to:


                           (1) unlawfully injure the person threatened or another
                           person, or damage property;


                           (2) unlawfully subject a person to physical confinement or
                           restraint;


                           (3) commit a crime; . . .




       4
           We have only cited the portions of the intimidation statute relevant to Devers’ charges.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020                 Page 7 of 13
[14]   We note that the charging information in this case did not specify the content of

       the threat, i.e., whether Devers’ threat was to harm Clark or himself. The

       statute does include, in the definition of threat, that the threat may be directed

       at someone other than the victim of the intimidation. See, e.g., J.T. v. State, 718

       N.E.2d 1119, 1124 n.6 (Ind. Ct. App. 1999) (“[T]he person placed in fear need

       not fear for her own safety. The statute applies whether the threat is made to

       unlawfully injure the person threatened or another person.”). The parties have

       not identified any law, however, that discusses whether threatening to commit

       suicide is a “threat” as defined by statute. With this in mind, we will address

       Devers’ arguments.


                                               I.      Trial Counsel

[15]   Devers argues his trial counsel rendered ineffective assistance (1) for failing to

       object and/or move for a mistrial or admonishment during the State’s closing

       arguments and (2) for failing to request a more specific unanimity instruction

       based upon the State’s closing arguments that Devers could be convicted of

       intimidation based upon Devers’ defense.


[16]   To prevail on a claim of ineffective assistance of counsel, a petitioner must

       demonstrate both that: (1) his or her counsel’s performance was deficient, and

       (2) 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)), reh’g denied, cert. denied, 534 U.S. 830,

       122 S. Ct. 73 (2001). The failure to satisfy either prong will cause the claim to

       fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020   Page 8 of 13
       assistance of counsel claims, thus, can be resolved by a prejudice analysis alone.

       Id. To demonstrate prejudice, “the 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. A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Weisheit v.

       State, 109 N.E.3d 978, 983 (Ind. 2018) (quoting Strickland, 466 U.S. at 694, 104

       S. Ct. 2052).


                                              A. Closing Argument

[17]   Devers argues that trial counsel should have objected during the State’s closing

       argument after the prosecutor argued “Devers was guilty of intimidation based

       on a factual scenario not covered by the intimidation statute.” Appellant’s Br.

       p. 13. Devers argues that he was prejudiced by this error because this improper

       argument “meant the jury could convict Devers of intimidation even if they

       agreed with the defense[’s] version” of what occurred that night. Id.


[18]   As noted above, Devers has not identified any law that precluded the State’s

       closing argument. This is important because when a claim of ineffective

       assistance is based on counsel’s failure to object, the petitioner must

       demonstrate that, if an objection had been made, the trial court would have had

       no choice but to sustain it. See Cole v. State, 61 N.E.3d 384, 387 (Ind. Ct. App.

       2016), trans. denied. Because there is no law that specifically precludes the

       State’s argument, Devers cannot prove that had his counsel objected, the trial




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020   Page 9 of 13
       court would have had no option but to sustain the objection. 5 Thus, Devers has

       failed to prove that he was prejudiced by this closing argument. Devers failed

       to show the result of the proceeding would have been different if counsel

       objected to the closing argument. We, therefore, cannot say that the PC court’s

       denial of Devers’ PCR petition is clearly erroneous under these circumstances.


                                                     B. Jury Instruction

[19]   Next, Devers argues that the trial counsel’s failure to request a separate jury

       unanimity instruction constituted deficient performance and prejudiced Devers.

       Devers relies upon this Court’s opinion in Castillo v. State, 734 N.E.2d 299 (Ind.

       Ct. App. 2000), summarily affirmed on trans., 741 N.E.2d 1196 (Ind. 2001). In

       Castillo, a confidential informant purchased cocaine from Castillo on two

       separate occasions in two different locations. See Castillo, 734 N.E.2d at 302.

       Castillo was charged with possession of cocaine and dealing in cocaine, Class A

       felonies. The charging information was “unspecific” and only charged that

       Castillo delivered cocaine within 1,000 feet of school property. Id. at 304. In

       closing argument, the State argued that the jury had a choice in convicting




       5
         We do not disagree that it is a tough call as to whether a threat to commit suicide constitutes a “threat” by
       statute. Importantly, the use of both “another person” as well as “unlawfully injure” in the intimidation
       statutes gives us pause. See Ind. Code § 34-45-2-1(d). Regardless, even if we were to find the statutory
       definition of “threat” does not encompass a threat to commit suicide, we would not find Devers’ trial counsel
       ineffective on this basis. As the parties acknowledge, they have been unable to find law on this issue, and we
       cannot fault trial counsel for failure to anticipate a possible future clarification of the law. See Appellant’s App.
       Vol. II p. 81. See Woodson v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012) (holding “‘For purposes of
       ineffective assistance of counsel claims, the law requires consideration of legal precedent available to counsel
       at the time of his representation of the accused, and counsel will not be deemed ineffective for not
       anticipating or initiating changes in the law.’”) (quoting Sweeney v. State, 886 N.E.2d 1, 8 (Ind.Ct.App.2008),
       trans. denied).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020                        Page 10 of 13
       Castillo because the State proved dealing “twice but [the jury] only had to find

       it either happened” at one location or the other.


[20]   Our Court held that the trial court should have instructed the jury on which

       dealing crime the defendant committed, writing:


               It is possible, given these facts, that some jurors believed that
               Castillo committed the earlier dealing crime at Garcia’s home
               while other jurors believed that Castillo committed the dealing
               violation at his home later that same day. Consequently, it is
               possible that the jury’s verdict of guilty regarding the charge of
               dealing in cocaine was not unanimous.


       Id. at 304-05.


[21]   As the PC court found, Castillo is distinguishable. The conviction in Castillo was

       based on the State’s presentation of evidence regarding two separate events,

       which could have been charged separately, but only one charge was filed. In

       Devers’ case, the State’s evidence leading to Devers’ conviction was based on

       one incident. The defense presented conflicting evidence to which the State

       responded during closing argument. Devers cannot prove prejudice from trial

       counsel’s failure to request a more specific unanimity instruction. Based on the

       foregoing, the PC Court’s conclusion was not clearly erroneous.


                                            II.      Appellate Counsel

[22]   Devers argues his appellate counsel rendered ineffective assistance because

       appellate counsel did not raise the two previously discussed arguments on



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020   Page 11 of 13
       appeal, which he contends were “clearly stronger” than the ones appellate

       counsel raised. Appellant’s Br. p. 14.


[23]   “Our standard of review for claims of ineffective assistance of appellate counsel

       is the same as for trial counsel’s ineffective assistance.” Jervis v. State, 28 N.E.3d

       361, 369 (Ind. Ct. App. 2015) (citing Fisher v. State, 810 N.E.2d 674, 676 (Ind.

       2004)), trans. denied. Where a petitioner argues that appellate counsel failed to

       raise an issue on appeal, the “[p]etitioner must demonstrate that: (1) the

       unraised issues are significant and obvious from the face of the record; and (2)

       the unraised issues are ‘clearly stronger’ than the raised issues.” Timberlake v.

       State, 753 N.E.2d 591, 606 (Ind. 2001); see Bieghler v. State, 690 N.E.2d 188, 193

       (Ind. 1997), cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998).


[24]   Based on our analysis above, see supra Section I, Devers has not convinced us

       that these issues are clearly stronger than the issues raised by Attorney Barnhart

       on appeal. We cannot say, therefore, that Devers received ineffective assistance

       of counsel on direct appeal. 6 The PC court’s denial of Devers’ PCR petition

       was not clearly erroneous.




       6
        We note that, because Devers cannot prove ineffective assistance of counsel with regard to his direct appeal,
       Devers would not have been able to prove fundamental error on appeal. See Benefield v. State, 945 N.E.2d
       791, 805 (Ind. Ct. App. 2011) (holding “where an appellant has failed to prove ineffective assistance of trial
       counsel, our holding would exclude a finding of fundamental error”).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020                  Page 12 of 13
                                                  Conclusion

[25]   Devers has not met his burden to prove that the PC Court’s denial of his PCR

       petition was clearly erroneous. We affirm.


[26]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020   Page 13 of 13
