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
                                                                   FILED
                                                                 May 21 2012, 9:21 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
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   ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

   JOHNNY W. ULMER                                      GREGORY F. ZOELLER
   Cataldo Law Offices, Inc.                            Attorney General of Indiana
   Bristol, Indiana
                                                        J.T. WHITEHEAD
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                   IN THE
                         COURT OF APPEALS OF INDIANA

   JAMES GERALD,                                  )
                                                  )
           Appellant,                             )
                                                  )
                   vs.                            )     No. 20A05-1108-CR-413
                                                  )
   STATE OF INDIANA,                              )
                                                  )
           Appellee.                              )


                          APPEAL FROM THE ELKHART CIRCUIT COURT
                              The Honorable Terry Shewmaker, Judge
                                 Cause No. 20C01-0912-FB-00081


                                               May 21, 2012

                     MEMORANDUM DECISION – NOT FOR PUBLICATION


   MATHIAS, Judge
       James Gerald (“Gerald”) was convicted in Elkhart Circuit Court of Class B felony

robbery and adjudicated an habitual offender. The trial court ordered Gerald to serve a

ten-year sentence for robbery and enhanced that sentence by eight years due to the

habitual offender adjudication. Gerald appeals his conviction and raises the following

issue: whether he was denied the effective assistance of trial counsel.

       We affirm.

                              Facts and Procedural History

       On August 25, 2009, at approximately 11:45 p.m., Bryan Dull (“Dull”) was

walking to Kathy’s Bar in Elkhart, Indiana. As he neared the intersection of Bower and

Riverside, a car pulled up alongside him. Two males exited the vehicle and started

walking in Dull’s direction. Dull began to feel uncomfortable and started running toward

the bar. However, he tripped and fell while running, allowing the two men to catch him.

They held Dull down and punched him in the head while demanding money. But Dull

did not have any money, so eventually the men got back into the vehicle and drove away.

       After the attack, Dull discovered that his Blackberry cell phone was missing. He

was unable to call anyone for assistance and walked to his grandparents’ home several

blocks away. Elkhart Police Officer Chris Faigh was dispatched to Dull’s grandparents’

home after his father reported the incident. Officer Faigh observed Dull’s injuries, and

requested an evidence technician to photograph them. Dull refused medical treatment for

his injuries because he did not have medical insurance.

       After concluding the interview with Dull, Officer Faigh received a dispatch

concerning a fight near the area where Dull was attacked.           When he and another

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responding officer, Corporal Anthony Rucker, arrived on the scene, they observed

suspects fleeing the area. Officer Faigh saw one of the suspects, who was later identified

as Gerald, running and ordered him to stop multiple times. Gerald refused and the officer

had to chase him down. Officer Faigh arrested Gerald for resisting law enforcement and

public intoxication. Corporal Rucker arrested another fleeing suspect, Allen Hartung-

Mann (“Mann”) for illegal consumption by a minor.

      During the booking procedure at the police station, Corporal Rucker found two

cell phones in Mann’s possession. Officer Faigh observed that one of the phones was a

Blackberry. When he turned the cell phone on, he saw a picture of Dull. Dull was then

asked to come to the police station to identify his property. Dull produced the original

packing for the phone, and Officer Faigh confirmed that the serial numbers on the

packing and phone matched.

      Dull was then shown a photo array and identified Mann as one of his assailants.

The investigation was then turned over to Detective Robert Presswood. The detective

had spoken with Mann who stated that Gerald and another man named T.J. attacked Dull.

Dull was then shown another photo array and identified Gerald as one of the men who

attacked him.

      Gerald was charged with Class B felony robbery and with being a habitual

offender. He was also charged with resisting law enforcement and public intoxication

under a separate cause number. The two separate causes were joined for trial. The

proceedings were delayed in part because Gerald desired to represent himself, but after he

sought reappointment of counsel, a jury trial was held on June 20, 2011.

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       The jury found Gerald guilty on all four charges, and also found that he was a

habitual offender. Gerald was sentenced on July 14, 2011, and he was ordered to serve

an advisory ten-year sentence for the robbery conviction. The trial court then enhanced

that sentence by eight years for the habitual offender adjudication.        The sentences

imposed for resisting law enforcement and public intoxication were ordered to be served

concurrent to the sentence imposed for the robbery conviction. Gerald now appeals.

Additional facts will be provided as necessary.

                                Discussion and Decision

       Gerald has raised his ineffective assistance of counsel claim on direct appeal of his

conviction.    A post-conviction proceeding is generally the preferred forum for

adjudicating claims of ineffective assistance of counsel because the presentation of such

claims often requires the development of new evidence not present in the trial record.

See Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998). If a defendant chooses to raise a

claim of ineffective assistance of counsel on direct appeal, “the issue will be foreclosed

from collateral review.” Id. at 1220. This rule should “likely deter all but the most

confident appellants from asserting any claim of ineffectiveness on direct appeal.” Id.

When a claim of ineffective assistance of counsel is based solely on the trial record, as it

is on direct appeal, “every indulgence will be given to the possibility that a seeming lapse

or error by defense counsel was in fact a tactical move, flawed only in hindsight[,]” and

“[i]t is no surprise that such claims almost always fail.” Id. at 1216 (internal quotes and

citation omitted).



                                             4
          To prevail on a claim of ineffective assistance of counsel, Gerald must show both

that counsel’s performance fell below an objective standard of reasonableness and that

the deficient performance prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.

1998) (citing Strickland v. Washington, 466 U.S. 668 (1984)).            There is a strong

presumption that counsel rendered adequate assistance. Id. “Evidence of isolated poor

strategy, inexperience or bad tactics will not support a claim of ineffective assistance.” Id.

at 273.

          To establish the prejudice prong of the test, Gerald must also show there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App.

2002), trans. denied. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence

resulted from a breakdown in the adversarial process that rendered the result of the

proceeding fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272.

          Gerald claims his trial counsel was ineffective 1) for failing to investigate the

circumstances of the photo array wherein Dull identified Gerald as one of his attackers,

2) for failing to call as a witness the police officer who presented the first two photo

arrays to Dull, and 3) for failing to cross-examine Detective Presswood on his

presentation of the third photo array to Dull.

          First, we observe that because Gerald has presented this issue on direct appeal,

there is no evidence in the record concerning what investigation counsel undertook

concerning Dull’s identification of Gerald when presented with the photo arrays during

                                                 5
the police investigation. Gerald’s claim concerning counsel’s failure to investigate is not

supported by any evidence.

       State’s Exhibits 11 and 12 are two of the three photo arrays that Dull was

presented with for the purpose of identifying his assailants. Gerald’s picture, which Dull

circled, only appears in State’s Exhibit 12. The probable cause affidavit references

another photo array that Sergeant Karl Miller presented to Dull and states that Dull “was

unable to identify the other person involved in the robbery.” Appellant’s App. p. 41. But

there is no evidence in the record that would establish whether Gerald’s picture was

included in that photo array.

       There is also no evidence in the record that would establish that Gerald was

prejudiced by trial counsel’s failure to call Sergeant Miller as a witness. Quite simply, it

is possible that Gerald’s picture was not included in that photo array. Furthermore, at

trial, Dull identified Gerald as one of the men who attacked him.

       Gerald also argues that trial counsel was ineffective for failing to cross-examine

Detective Presswood regarding Dull’s identification of Gerald in the third photo array.

He claims that Dull’s “selection of Mr. Gerald, would suggest that the identification

procedures used by Detective Presswood during this lineup was impermissibly

suggestive.” Appellant’s Br. at 17. This broad assertion lacks evidentiary support in the

record. Moreover, we note that trial counsel elicited testimony from Dull attempting to

challenge Dull’s ability to know and to recall what his attackers looked like.

       Finally, Gerald argues that his trial counsel was ineffective for failing to impeach

Mann’s testimony. Gerald alleges that “trial counsel could have impeached [Mann’s]

                                             6
testimony if he had interviewed [T.J.] before the trial, or call him as a witness at trial. Mr.

Gerald alleged that [T.J.] would have substantiated his statement that he stayed in the

vehicle and he was the driver.” Appellant’s Br. at 19. Furthermore, Gerald claims that

he told trial counsel to contact the owner of the vehicle and T.J., but counsel did not do so.

       Gerald’s argument is based on speculation, not on the record. First, there is no

evidence in the record from which we could conclude whether trial counsel attempted to

contact T.J. or the vehicle’s owner. And there are any number of strategic reasons why

counsel would not have subpoenaed T.J. to be a witness at trial. There is simply no

evidence of what his testimony might have been, and it is quite possible that he would

have testified that Gerald participated in the robbery. Finally, during closing arguments,

trial counsel argued that Mann’s credibility was questionable and that he was trying to

protect his friend, T.J., by testifying that Gerald attacked Dull.

       Because the record lacks any evidentiary support for Gerald’s arguments, Gerald

cannot rebut the presumption that trial counsel rendered adequate assistance. Gerald has

not established that he was subjected to ineffective assistance of trial counsel. We

therefore affirm his conviction for Class B felony robbery.1

       Affirmed.

ROBB, C.J., and BAILEY, J., concur.




1
  Gerald has not raised any arguments specifically challenging the habitual offender adjudication or the
resisting law enforcement and public intoxication convictions.

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