      MEMORANDUM DECISION
                                                                               May 19 2015, 5:30 am
      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 establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Lorie Bohannon                                           Gregory F. Zoeller
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Henry A. Flores, Jr.
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Lorie Bohannon,                                          May 19, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1409-CR-610
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Helen W. Marchal,
                                                               Judge
      Appellee-Plaintiff
                                                               Case No. 49G16-1405-CM-27008




      Crone, Judge.


                                               Case Summary
[1]   Lorie Bohannon appeals her conviction for class B misdemeanor harassment

      following a bench trial. She argues that the evidence is insufficient to support

      her conviction and that she was denied effective assistance of counsel.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-610 | May 19, 2015          Page 1 of 7
      Concluding that the evidence is sufficient and that she was not deprived of

      effective assistance of counsel, we affirm.


                                    Facts and Procedural History
[2]   The facts most favorable to the conviction follow.1 In June 2013, Bohannon

      went to Samuel Hutton’s workplace and saw him hugging Carla Morrison.

      Bohannon became upset and said to Hutton, “[T]his is why you f’ing not taking

      my calls, texting or coming by because of her.” Tr. at 5. Bohannon and Hutton

      engaged in a “heated argument.” Id. at 6. Bohannon turned to Morrison and

      asked, “[W]ho the f was [she] and what was the extent of [her and Hutton’s]

      relationship.” Id. at 7. Bohannon repeatedly stated that she was in a

      relationship with Hutton. Hutton told Bohannon that he was never in a

      relationship with her and that he was in a relationship with Morrison.


[3]   After that encounter and until March 2014 when charges were filed against

      Bohannon and a no-contact order was issued, Bohannon called and texted

      Morrison over a hundred times using at least five different phone numbers.

      Morrison knew that Bohannon was calling her because Bohannon identified

      herself. When Bohannon called her, Morrison would tell her to stop calling

      and hang up. Bohannon told Morrison that “she is going to play with …

      someone will be … hurt and it will not be her.” Id. at 33. Bohannon sent texts




      1
        In the statement of facts in her appellant’s brief, Bohannon neither supports the facts by page references to
      the record and the appendix nor sets forth the facts in accordance with our standard of review as required by
      Indiana Appellate Rule 46(A)(6).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-610 | May 19, 2015                   Page 2 of 7
      to Morrison regarding Hutton. For example, Bohannon texted Morrison that

      Hutton came to Bohannon’s home and got into bed with her. Id. at 18.

      Bohannon texted Morrison to tell “our man [that] we’re done.” Id. at 30. She

      texted Morrison that she bought Hutton’s daughter Christmas presents

      accompanied by a photograph of Bohannon sitting on Morrison’s car. Id.

      Morrison changed her phone number to attempt to stop Bohannon’s calls and

      texts, but Bohannon discovered her new number and continued calling and

      texting. Morrison downloaded an app to block Bohannon’s calls.


[4]   Also between the June 2013 encounter and March 2014, Morrison saw

      Bohannon driving by or sitting outside her home and once saw Bohannon

      peeking through her window. In February 2014, Morrison was at work and

      saw Bohannon standing outside next to Morrison’s car. Morrison went out to

      confront Bohannon, but she was gone. Morrison noticed that her car

      windshield was broken and two tires were slashed, and she called the police.

      Bohannon told a detective that she called and texted Morrison a couple of times

      and did so because she was frustrated with the Hutton situation.


[5]   The State charged Bohannon with class A misdemeanor criminal mischief and

      class B misdemeanor harassment. The trial court found Bohannon not guilty of

      criminal mischief but guilty of harassment. Bohannon appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-610 | May 19, 2015   Page 3 of 7
                                     Discussion and Decision

        Section 1 – The evidence is sufficient to support Bohannon’s
                          harassment conviction.
[6]   Bohannon contends that her harassment conviction is unsupported by sufficient

      evidence. Our standard of review is well settled:

              [When] reviewing the sufficiency of the evidence needed to support a
              criminal conviction[,] ... we neither reweigh evidence nor judge
              witness credibility. We consider only the evidence supporting the
              judgment and any reasonable inferences that can be drawn from such
              evidence. We will affirm a conviction 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.

      Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008) (citations omitted).


[7]   To convict Bohannon of class B misdemeanor harassment the State was

      required to prove beyond a reasonable doubt that she called Morrison with

      intent to harass, annoy, or alarm her but with no intent of legitimate

      communication. Ind. Code § 35-45-2-2(a)(1); Appellee’s App. at 2. Here, the

      evidence most favorable to the judgment shows that Bohannon was upset by

      Morrison’s relationship with Hutton, called and texted Morrison over a

      hundred times even though Morrison repeatedly told her not to call, and

      threatened to hurt Morrison. This is sufficient evidence from which a

      reasonable factfinder could conclude that Bohannon called Morrison with the

      intent to harass, annoy, or alarm her, but with no intent of legitimate

      communication. Bohannon asserts that the State’s evidence does not show that

      she is the person who called Morrison and that Morrison’s testimony is

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-610 | May 19, 2015   Page 4 of 7
      inconsistent with other evidence. Bohannon’s argument is merely an invitation

      to reweigh evidence and judge witness credibility, which we must decline.

      Accordingly, we conclude that sufficient evidence supports Bohannon’s

      harassment conviction.


        Section 2 – Bohannon was not denied effective assistance of
                              trial counsel.
[8]   Bohannon also contends that she was deprived of effective assistance of trial

      counsel as guaranteed by the Sixth Amendment to the United States

      Constitution. To prevail on a claim of ineffective assistance, a defendant must

      demonstrate both that counsel’s performance was deficient and that the

      defendant’s case was thereby prejudiced. Ward v. State, 969 N.E.2d 46, 51 (Ind.

      2012) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

      deficient performance, a petitioner must demonstrate that counsel’s

      representation “‘fell below an objective standard of reasonableness, committing

      errors so serious that the defendant did not have the counsel guaranteed by the

      Sixth Amendment.’” Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007) (quoting

      McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). In assessing whether

      counsel’s performance was deficient, we recognize that even the finest, most

      experienced criminal defense attorneys may not agree on the ideal strategy or

      most effective way to represent a client, and therefore there is a strong

      presumption that counsel rendered adequate assistance and made all significant

      decisions in the exercise of reasonable professional judgment. Smith v. State,

      765 N.E.2d 578, 585 (Ind. 2002). To establish prejudice, the defendant must

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-610 | May 19, 2015   Page 5 of 7
       show that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. Latta v. State, 743

       N.E.2d 1121, 1125 (Ind. 2001). “‘A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland,

       466 U.S. at 694).


[9]    Bohannon asserts that her trial counsel’s performance was deficient because he

       (1) limited the amount of time he spent on her case because she refused to pay

       him additional money, (2) failed to file a motion to dismiss the charging

       information, (3) failed to subpoena Morrison’s cell phone records, (4) failed to

       introduce discovery, and (5) failed to confer with her about sentencing. To

       support her assertions, Bohannon presents a narrative of her meetings and

       discussions with her trial counsel. However, because she brings her

       ineffectiveness claim on direct appeal, the narrative she provides is merely her

       unsubstantiated version of events, and we have no testimony from her trial

       counsel that might explain his decisionmaking.


[10]   We observe that “in the context of assessing ineffectiveness claims, typically a

       ‘factual record must be developed in and addressed by the [trial] court in the

       first instance for effective review.’” Woods v. State, 701 N.E.2d 1208, 1216 (Ind.

       1998) (quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)).

       A “postconviction hearing is normally the preferred forum to adjudicate an

       ineffectiveness claim.” Id. at 1219. “‘When the only record on which a claim

       of ineffective assistance is based is the trial record, every indulgence will be

       given to the possibility that a seeming lapse or error by defense counsel was in

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-610 | May 19, 2015   Page 6 of 7
       fact a tactical move, flawed only in hindsight.’” Id. at 1216 (quoting United

       States v. Taglia, 922 F.2d 413, 417-18 (7th Cir. 1991)). Here, without the

       development of a factual record, Bohannon’s argument does not overcome the

       strong presumption that her trial counsel rendered adequate assistance.

       Therefore, we conclude that she was not denied effective assistance of counsel.


[11]   Basing on the foregoing, we affirm Bohannon’s harassment conviction.2


[12]   Affirmed.


       Brown, J., and Pyle, J., concur.




       2
         Bohannon also seeks reversal of her conviction based on the alleged inadequacy of the probable cause
       affidavit. However, our supreme court has held that “lack of probable cause is not grounds for dismissing a
       charging information.” Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000); see also Felders v. State, 516
       N.E.2d 1, 2 (Ind. 1987) (“An invalid arrest does not affect the right of the State to try a case nor does it affect
       the judgment of conviction.”). “‘The probable cause affidavit is … a means of satisfying the constitutional
       and statutory requirements that the pre-trial detention of the accused be based on a determination, by a
       neutral and detached magistrate, that probable cause exists to believe that the accused committed the crime.’”
       Id. (quoting Gilliam v. State, 270 Ind. 71, 80, 383 N.E.2d 297, 303 (1978)). Therefore, at this stage in the
       proceedings, Bohannon cannot rely on a deficient probable cause argument to obtain reversal of her
       conviction.

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