MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                           Aug 14 2019, 8:29 am
regarded as precedent or cited before any
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
Anne Murray Burgess                                      J.T. Whitehead
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Willie J. Washington,                                    August 14, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-473
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         02D06-1607-PC-84



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019                      Page 1 of 18
                                              Case Summary
[1]   Willie J. Washington (“Washington”) appeals the denial of his petition for post-

      conviction relief following his convictions for Corrupt Business Influence, a

      Class C felony (“Count I”),1 and twenty counts of Forgery, all Class C felonies.2

      Washington presents two issues for our review, which we restate as whether he

      was denied the effective assistance of trial and appellate counsel. We affirm.



                                 Facts and Procedural History
[2]   The relevant facts were recited by a panel of this Court in Washington’s direct

      appeal:


                 During the summer of 2012, Washington prepared counterfeit
                 payroll checks. The names of the companies listed as payors on
                 the forged checks, which were chosen by Washington, included
                 Bain, Tower, and Master Spa. Angela Fett knew Washington
                 and she recruited others to cash the forged checks. Washington
                 told Fett to give the person that actually went into the stores $125
                 for each check that they cashed. Fett took her crew to Kroger
                 and Walmart to cash the checks because Washington “said that
                 they are the only ones that would read their – whatever was in
                 their register would – some of the ones would read the account
                 numbers at the bottom.” Transcript at 88. Washington also told
                 Fett to cash the checks on Friday after 5:00 because the stores
                 would be busy with a large number of checks being cashed. At
                 some point in 2012, Kathy Fox, the district loss prevention



      1
       Ind. Code § 35-45-6-2. At all times, we refer to the versions of the statutes in effect at the time of
      Washington’s offenses.
      2
          I.C. § 35-43-5-2(b).


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019                        Page 2 of 18
        manager for the Kroger Company, learned that some counterfeit
        payroll checks with Bain listed as the payor were cashed at
        Kroger stores.


        During the summer of 2012, Lieutenant Timothy Selvia of the
        Fort Wayne Police Department began investigating reports of
        forged and counterfeited payroll checks. These counterfeit
        checks were being cashed at Kroger, Walmart, Summit Markets,
        City Markets, and Save-A-Lot. The investigation led to the arrest
        of a woman who admitted her involvement and stated that her
        “crew leader” was a woman by the name of “Angie.” Id. at 130.
        Lieutenant Selvia eventually learned the person’s identity to be
        Fett. During the course of the investigation, Lieutenant Selvia
        was able to link a little over forty checks with the organization in
        which Fett was the crew leader.


        After Fett was charged, she informed police that she wanted to
        make a statement. Fett stated that Washington was always the
        one who provided her with the forged, counterfeit checks, and
        that he “was still contacting [her] about putting another crew
        together to pass more forged or counterfeit checks.” Id. at 91.
        Fett agreed to cooperate with the investigation of Washington.


        On June 13, 2013, police provided Fett with a list of fictitious
        names, and she copied the names in her own handwriting. Fett
        then telephoned Washington, and he told her to drop off the list
        of names at his mother’s house on South Hanna Street. Police
        searched Fett and her vehicle before following her to the South
        Hanna Street address. At the address, Fett remained in her
        vehicle while Washington left the home and approached Fett’s
        vehicle. Fett handed Washington the list of fictitious names.
        Washington instructed Fett to return to pick up the forged and
        counterfeited checks in a couple of hours. Washington sent Fett
        a text message informing her that the checks were ready, Fett
        then returned to Washington’s location, and Washington gave
        her an envelope containing twenty counterfeit checks that listed
Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 3 of 18
        Book Daddy Enterprises as the payor. Fett later handed the
        envelope to Lieutenant Selvia.


        A search warrant was executed at the South Hanna Street
        address. A laptop computer, a desktop computer, a couple of
        printers, a couple of cell phones and various multi-media storage
        devices were confiscated. Several images of payroll checks,
        signatures from payroll checks, and logos from payroll checks
        were found on the desktop computer. Included among the check
        images were logos or specific checks of businesses. Also found
        on the computer were several signatures, including one for “Lisa
        Marger,” a name which appeared on each of the forged,
        counterfeit checks Washington gave to Fett on June 13, 2013. Id.
        at 160; State’s Exhibits 9-28.


        The State charged Washington with Count I, corrupt business
        influence as a class C felony for his acts between June 1, 2012,
        and June 14, 2013; and Counts II through XXI, forgery as class
        C felonies for his acts on June 13, 2013. A jury found
        Washington guilty as charged. At the sentencing hearing, the
        court noted Washington’s criminal record and his failed efforts at
        rehabilitation as aggravating factors, and noted there were
        multiple victims of Washington’s offenses. The court found no
        mitigating factors and sentenced Washington to eight years for
        Count I, corrupt business influence as a class C felony, and six
        years on each of Counts II through XXI, forgery as class C
        felonies. The court ordered that the sentence for Count II be
        served consecutive to Count I and that Counts II through XXI be
        served concurrent with each other for an aggregate sentence of
        fourteen years.


Washington v. State, No. 02A03-1310-CR-427, slip. op. at 2-4 (Ind. Ct. App. Jun.

24, 2014), trans. denied.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 4 of 18
[3]   On direct appeal, Washington challenged his sentence, raising the issues of

      whether the trial court abused its discretion in sentencing him and whether his

      sentence was inappropriate in light of the nature of his offenses and his

      character. Id. at 2. This Court affirmed. Id.


[4]   On July 25, 2016, Washington, pro se, filed a petition for post-conviction relief,

      which was amended by counsel on April 10, 2018. The post-conviction court

      held an evidentiary hearing on the amended petition on July 20, 2018, at which

      Washington’s appellate counsel testified. In lieu of live testimony at the

      hearing, an evidentiary deposition of Washington’s trial counsel was conducted

      on September 5, 2018.


[5]   On January 31, 2019, the post-conviction court entered its written order

      denying Washington’s petition. Washington now appeals.



                                 Discussion and Decision
                                          Standard of Review
[6]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). When appealing

      the denial of post-conviction relief, the petitioner appeals from a negative

      judgment. Wilkes, 984 N.E.2d at 1240 (citing Ben-Yisrayl v. State, 738 N.E.2d

      253, 258 (Ind. 2000)). Thus, the appellant must establish that the evidence as a

      whole unmistakably and unerringly points to a conclusion contrary to the post-

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 5 of 18
      conviction court’s decision. Id. We review the post-conviction court’s factual

      findings for clear error and owe no deference to its conclusions of law. Id.


                                    Effectiveness of Trial Counsel
[7]   Washington contends he was denied the effective assistance of trial counsel in

      two respects: (1) by failing to request a jury instruction on the definition of

      “pattern of racketeering activity,” and (2) by failing to provide a specific basis

      for his objection to testimony that he allegedly forged checks in 2004.3


[8]   The Sixth Amendment to the U.S. Constitution guarantees a person accused of

      a crime the right to the assistance of counsel. U.S. Const. amend. VI. “[T]he

      right to counsel is the right to the effective assistance of counsel.” Strickland v.

      Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.

      759, 771 n.14 (1970)).


[9]   Effectiveness of counsel is a mixed question of law and fact. Id. at 698. We

      evaluate Sixth Amendment claims of ineffective assistance under the two-part

      test announced in Strickland. Id. To prevail on an ineffective assistance of

      counsel claim, a defendant must demonstrate both deficient performance and

      resulting prejudice. Dobbins v. State, 721 N.E.2d 867, 873 (Ind. 1999) (citing

      Strickland, 466 U.S. at 687). Deficient performance is that which falls below an




      3
        Washington also argues that counsel was ineffective for failing to object to testimony about similar conduct
      in 2007; however, Washington did not raise the issue of the 2007 activity in his petition or amended petition,
      and therefore the issue is waived. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in
      the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”).

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019                     Page 6 of 18
       objective standard of reasonableness. Strickland, 466 U.S. at 687; see also

       Douglas v. State, 663 N.E.2d 1153, 1154 (Ind. 1996). Prejudice exists when a

       claimant demonstrates “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.” Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687,

       692 (Ind. 1996). The two prongs of the Strickland test are separate and

       independent inquiries. Strickland, 466 U.S. at 697. A court deciding an

       ineffective assistance claim need not address both components of the inquiry if

       the defendant makes an insufficient showing on one. Id. Thus, “[i]f it is easier

       to dispose of an ineffectiveness claim on the ground of lack of sufficient

       prejudice . . . that course should be followed.” Id.


                                           (1) Jury Instruction
[10]   Washington first contends that he was denied the effective assistance of trial

       counsel when counsel failed to tender a jury instruction on the definition of

       “pattern of racketeering activity.” He argues that had the jury been instructed

       on the meaning of the phrase, there was a reasonable probability that he would

       not have been convicted of corrupt business influence.


[11]   As to Count I, the State charged:


               Sometime during the period of time between the 1st day of June,
               2012 and the 14th day of June, 2013, in the County of Allen and
               in the State of Indiana, said defendant, Willie J. Washington,
               while associated with an enterprise, to wit: a group of individuals

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 7 of 18
                associated in fact, did knowingly or intentionally conduct or
                otherwise participate in the activities of the enterprise through a
                pattern of racketeering activity, involving obtaining, or attempts
                to obtain, cash from local retail establishments through the
                uttering of forged payroll checks . . . .


       (Prior App. 33.)


[12]   Indiana Code section 35-45-6-2(3) provides, in relevant part: “A person . . . who

       is employed by or associated with an enterprise, and who knowingly or

       intentionally conducts or otherwise participates in the activities of that

       enterprise through a pattern of racketeering activity; commits corrupt business

       influence, a Class C felony.” An “enterprise” includes “a union, an

       association, or a group, whether a legal entity or merely associated in fact.”

       I.C. § 35-45-6-1(c)(2). The phrase “racketeering activity” means “to commit, to

       attempt to commit, to conspire to commit a violation of, or aiding and abetting

       in a violation of” a laundry-list of offenses, including forgery.4 I.C. § 35-45-6-

       1(e)(16).


[13]   The statute also defines “pattern of racketeering activity:”




       4
         A person who, with intent to defraud, makes, utters, or possesses a written instrument in such a manner
       that it purports to have been made:
                (1) by another person;
                (2) at another time;
                (3) with different provisions; or
                (4) by authority of one who did not give authority;
       commits forgery, a Class C felony. I.C. § 35-43-5-2(b).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019                   Page 8 of 18
               “Pattern of racketeering activity” means engaging in at least two
               (2) incidents of racketeering activity that have the same or similar
               intent, result, accomplice, victim, or method of commission, or
               that are otherwise interrelated by distinguishing characteristics
               that are not isolated incidents. However, the incidents are a
               pattern of racketeering activity only if at least one (1) of the
               incidents occurred after August 31, 1980, and if the last of the
               incidents occurred within five (5) years after a prior incident of
               racketeering activity.


       I.C. § 35-45-6-1(d).


[14]   At trial, the trial court gave preliminary and final jury instructions on the

       offense of corrupt business influence as follows:


                     To convict the Defendant of Count 1, the State must have
               proved each of the following beyond a reasonable doubt:


                        The Defendant, Willie J. Washington,


                                1. was employed by or associated with an
                                   enterprise, and


                                2. knowingly or intentionally,


                                3. conducted or otherwise participated in the
                                   activities of that enterprise,


                                4. through a pattern of racketeering activity,
                                   involving obtaining, or attempts to obtain, cash
                                   from local retail establishments through the
                                   uttering of forged payroll checks.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 9 of 18
       (Prior App. 83, 121; Trial Tr. 16-17, 180-81.) The trial court also provided the

       jury with instructions on the definitions of “enterprise” and “racketeering

       activity.” However, the court did not instruct the jury – and trial counsel did

       not tender a proposed instruction – on the definition of “pattern of racketeering

       activity.” Thus, the jury was properly instructed on the essential elements of

       the crime, but not the definition of a term of art.


[15]   Trial counsel testified at the post-conviction hearing that Washington’s corrupt

       business influence charge “may have been the only one I had actually tried to a

       jury” (PCR App. Vol. II 83), and knowing what he knows now, he “[p]robably”

       would have requested the final instructions included a definition of “pattern of

       racketeering activity.” (PCR App. Vol. II 94.) The post-conviction court

       concluded, however, there was “no reasonable probability that Petitioner would

       have been acquitted of corrupt business influence if the jury had been properly

       instructed on the definition of a ‘pattern of racketeering activity’” and thus trial

       counsel “cannot be found ineffective for failing to tender a proper

       instruction[.]” (PCR App. Vol. II 222.)


[16]   Washington argues that he suffered prejudice from the omission of the

       definition of “pattern of racketeering activity” because the definition required

       the jury to find that he participated in at least two similar incidents of forgery

       within five years. According to Washington, although the jury heard evidence

       that he was involved in at least two incidents of forging checks in a five-year

       time frame – the sting operation in 2013 and the forged checks passed in the

       summer of 2012 – only the forgeries committed in 2013 were corroborated by

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 10 of 18
       evidence independent of the testimony of the State’s cooperating witness,

       Angela Fett (“Fett”), whose credibility was impeached at trial. Thus,

       Washington argues that “had the jury received the correct instruction, there is a

       reasonable probability the jury would have rejected the witness’s testimony as

       to the uncorroborated scheme” in 2012 (Appellant’s Br. 13) and acquitted him

       of Count I for lack of reliable evidence of a second incident within five years.


[17]   However, we disagree with Washington’s contention that the State presented

       no evidence, other than Fett’s self-serving testimony, that linked Washington to

       the checks forged in the summer of 2012. Kathy Fox, district loss prevention

       manager for Kroger Company, testified that several counterfeit Bain &

       Associates payroll checks were cashed in Kroger stores during the summer of

       2012. The State introduced into evidence one of those forged checks as Exhibit

       8. Fort Wayne Police Department (“FWPD”) Lieutenant Timothy Selvia

       (“Lieutenant Selvia”) then testified that he investigated a little over forty forged

       payroll checks drawn on the accounts of companies including Bain &

       Associates, Master Spas, and Tower Staffing that were cashed at Kroger,

       Walmart, and other stores in Allen County during June to September 2012.

       When asked whether Exhibit 8 was representative of the other checks,

       Lieutenant Selvia testified that the “names and dates would change . . . and . . .

       who the issuers were and the banks, but they were always very, very similar in

       the way they were laid out.” (Trial Tr. 129.) Finally, FWPD Detective John

       Helmsing, a computer forensics examiner and analyst, testified that in

       examining a computer seized from the South Hanna Street address after the


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 11 of 18
       2013 sting operation, he discovered image files of payroll checks or corporate

       logos associated with the companies Tower Staffing, Bain & Associates, and

       Master Spas, among several others. Also, a software program called

       Avenquest, which featured the ability to write and produce digital or computer-

       generated payroll checks, was loaded on one of the seized computers.


[18]   All of this evidence tended to link Washington to the forged checks passed in

       the summer of 2012, independent of Fett’s testimony that Washington gave her

       forged payroll checks from companies including Tower Staffing, Bain, and

       Master Spas to cash at Kroger and Walmart during that time frame. Thus, even

       if the jury (1) completely discredited Fett’s testimony that she received the 2012

       forged checks from Washington, and (2) was instructed that a “pattern”

       required at least two similar incidents of racketeering activity within five years,

       Washington has failed to demonstrate that there was a reasonable probability

       that the jury would have acquitted him of Count I, as the conviction was clearly

       sustained by other evidence.5 Thus Washington has not shown he suffered

       prejudice from the omission of a definition of “pattern of racketeering activity”

       due to a lack of corroborating evidence.




       5
         We note that although Washington refers to the 2012 forgeries as a single incident, the evidence established
       that approximately forty forged payroll checks with similar appearance but representing multiple businesses
       were cashed at various stores over a period of four months in 2012. This evidence tends to suggest that there
       were multiple instances of racketeering activity that occurred in 2012, not a single incident.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019                   Page 12 of 18
                                     (2) Admission of Evidence
[19]   Washington next argues that trial counsel was ineffective when he failed to

       object on a specific basis to Fett’s testimony that she received forged payroll

       checks from Washington in 2004. At trial, Fett testified that she had “a lot of

       felony convictions,” including for forgery (Trial Tr. 83), and on cross-

       examination clarified that these convictions included passing forged payroll

       checks in 2004. (Trial Tr. 104-05.) After her testimony, the jury submitted the

       following question: “Who made the payroll checks for this witness before in

       2004 to 2007 when she was charged in the past?” (Trial Tr. 120-21.) Defense

       counsel objected, noting “I know that what she’s going to say is that he did, but

       he was never charged nor investigated.” (Trial Tr. 121.) The trial court

       permitted the question, and Fett testified that Washington gave her the checks

       in 2004.


[20]   “To demonstrate ineffective assistance of counsel for failure to object, a

       defendant must prove that an objection would have been sustained if made and

       that he was prejudiced by counsel’s failure to make an objection.” McKnight v.

       State, 1 N.E.3d 193, 202 (Ind. Ct. App. 2013). Here, counsel did object to the

       admission of evidence, but failed to articulate a specific basis for the objection.

       Washington contends that the evidence should have been excluded as (1)

       irrelevant under Indiana Evidence Rule 401 because the incident of forgery in

       2004 was outside the five-year window to establish a pattern of racketeering




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 13 of 18
       activity,6 and (2) unfairly prejudicial under Indiana Evidence Rules 403 and

       404(b).7 He argues that he was prejudiced by counsel’s failure to object on these

       specific grounds because the jury could have impermissibly relied on character

       evidence to infer he was guilty in this case, or based his conviction on Count I

       on an incident that occurred outside the five-year time frame.


[21]   However, even if the objection would have been sustained, Fett’s

       unsubstantiated claim that Washington gave her forged checks in 2004 was

       merely cumulative of the other evidence that Washington was Fett’s source for

       forged checks. Further, on cross examination, Fett acknowledged that she had

       never formally testified before that Washington had given her checks in 2004,

       and only informed law enforcement of the allegation in 2013 after her arrest.

       Given the independent evidence establishing that Washington committed

       multiple acts of forgery in 2012 and 2013, it is unlikely Fett’s allegations about

       Washington’s activities in 2004 had a substantial impact on the jury’s verdict.

       Washington has not demonstrated that he suffered prejudice from Fett’s

       testimony regarding acts he allegedly committed in 2004.




       6
         Indiana Evidence Rule 401 provides: “Evidence is relevant if: (a) it has any tendency to make a fact more or
       less probable than it would be without the evidence; and (b) the fact is of consequence in determining the
       action.” Generally, irrelevant evidence is not admissible. Ind. Evidence Rule 402.
       7
         A court may exclude relevant evidence if its probative value is substantially outweighed by a danger of
       unfair prejudice. Evid. R. 403. Further, “[e]vidence of a crime, wrong, or other act is not admissible to
       prove a person’s character in order to show that on a particular occasion the person acted in accordance with
       the character.” Evid. R. 404(b)(1).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019                  Page 14 of 18
[22]   In sum, Washington has failed to demonstrate a reasonable probability that the

       outcome would have been different had trial counsel tendered a proposed

       instruction on the definition of “pattern of racketeering activity” and objected to

       irrelevant evidence. Accordingly, the post-conviction court did not err in

       concluding that Washington failed to show that trial counsel was ineffective.


                                Effectiveness of Appellate Counsel
[23]   A defendant is entitled to the effective assistance of appellate counsel. Stevens v.

       State, 770 N.E.2d 739, 760 (Ind. 2002). The standard of review for a claim of

       ineffective assistance of appellate counsel is the same as for trial counsel. Reed

       v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). That is, the petitioner must show

       both that appellate counsel’s performance was deficient and the deficiency

       resulted in prejudice. Id. “Ineffective assistance of appellate counsel claims

       generally fall into three basic categories: (1) denial of access to an appeal; (2)

       waiver of issues; and (3) failure to present issues well.” Id. Here, Washington’s

       claim falls into the second category, as he contends that appellate counsel failed

       to raise the obvious issue of incomplete jury instructions as fundamental error.


[24]   The decision of what issues to raise on appeal is one of the most important

       strategic decisions to be made by appellate counsel. Bieghler v. State, 690 N.E.2d

       188, 193 (Ind. 1997). Ineffectiveness is rarely found when the issue is the

       failure to raise a claim on direct appeal. Id. When reviewing a claim that

       appellate counsel was ineffective for failing to raise an issue on appeal, we

       examine whether the unraised issues are (1) significant and obvious from the


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 15 of 18
       face of the record, and (2) clearly stronger than the raised issues. Timberlake v.

       State, 753 N.E.2d 591, 605-06 (Ind. 2001). If the analysis under this test

       demonstrates deficient performance, then we examine whether the unraised

       issues clearly would have been more likely to result in reversal. Reed, 856

       N.E.2d at 1195.


[25]   Washington argues that appellate counsel should have claimed fundamental

       error occurred when trial counsel did not request a jury instruction on “pattern

       of racketeering activity.” The fundamental error doctrine


               permits an appellate court to review a “claim that has been
               waived by a defendant’s failure to raise a contemporaneous
               objection.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).
               “Fundamental error is defined as an error so prejudicial to the
               rights of a defendant that a fair trial is rendered impossible.”
               Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans.
               denied. The fundamental error exception is “extremely narrow,
               and applies only when the error constitutes a blatant violation of
               basic principles, the harm or potential for harm is substantial,
               and the resulting error denies the defendant fundamental due
               process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).


       Benefield v. State, 945 N.E.2d 791, 801 (Ind. Ct. App. 2011).


[26]   At the post-conviction hearing, appellate counsel testified that he scrutinized

       the jury instructions, considered raising the issue of a missing definition, but

       deemed the issue waived. Further, he testified that in his experience it is “very

       difficult to prove fundamental error” on direct appeal. (PCR Tr. Vol. II 10.)




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 16 of 18
[27]   To support his assertion on appeal that “the doctrine of fundamental error as it

       applies to flawed instructions has not been obliterated” (Appellant’s Br. 23),

       Washington cites to three Indiana appellate court cases holding that an error in

       jury instructions constituted fundamental error. Washington then baldly

       concludes, without discussion of these cases, that “[r]aising the issue of the

       missing element on appeal would have led to the reversal of [his] conviction[.]”

       (Appellant’s Br. 24.)


[28]   However, an error in a jury instruction does not always rise to the level of

       fundamental error and require reversal. See, e.g., Barthalow v. State, 119 N.E.3d

       204, 211-12 (Ind. Ct. App. 2019) (failure to include the definition of “bodily

       injury” in jury instructions was not fundamental error in light of all relevant

       information given to the jury); Clemons v. State, 83 N.E.3d 104, 108 (Ind. Ct.

       App. 2017) (failure to include definition of “serious bodily injury” in jury

       instructions was not fundamental error where jury could rely on its “collective

       common sense and everyday experiences” to interpret the meaning of the

       phrase in context), trans. denied; Winkleman v. State, 22 N.E.3d 844, 850 (Ind. Ct.

       App. 2014) (jury instructions that omitted an element of the offense not

       fundamental error where the omitted element was not a central issue at trial),

       trans. denied.


[29]   Washington fails to develop an argument as to why the absence of a definition

       of “pattern of racketeering activity” in the jury instructions in his case would

       have risen to the level of fundamental error and required reversal on direct

       appeal. Accordingly, the issue is waived. Ind. Appellate Rule 46(A)(8)(a);

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 17 of 18
       Davis v. State, 835 N.E.2d 1102, 1113 (“A party waives an issue where the party

       fails to develop a cogent argument or provide adequate citation to authority and

       portions of the record.”), trans. denied.



                                               Conclusion
[30]   Washington has failed to demonstrate that he was denied the effective

       assistance of trial and appellate counsel. The post-conviction court properly

       denied the petition for post-conviction relief.


[31]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-473 | August 14, 2019   Page 18 of 18
