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04/06/88 KENNETH H. ROZIKA v. STATE INDIANA

Filed: April 6, 1988.

KENNETH H. ROZIKA, APPELLANT
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM GIBSON CIRCUIT COURT, The Honorable Walter Palmer, Judge, Cause No. CR-86-42.

Givan, J., Shepard, C.j., Pivarnik and Dickson, JJ., concur. DeBruler, J., concurs in result without separate opinion.

Author: Givan

GIVAN, J.

A jury trial resulted in appellant's conviction of Robbery Resulting in Bodily Injury, a Class B felony, for which he received a twelve (12) year sentence.

The facts are: During the early morning hours of August 19, 1986, Thomas Robb finished his shift at work and returned to his home in Gibson County, Indiana. When he was unlocking his door, he noticed appellant behind him. Robb testified that appellant was holding a can of spray mace behind his back and said he planned to take his television set. Robb further testified that appellant erroneously believed he owed him money pursuant to a loan agreement, and he wanted Robb's personal property to use as collateral. They both entered Robb's house, and Robb tried to convince appellant to leave. With the can of mace in his hand, appellant demanded that Robb locate his television set, which he did. Appellant found Robb's electric guitar in a bedroom, and as Robb entered the room, appellant sprayed him in the face with mace. A struggle ensued as Robb attempted to reach his shotgun behind the door, and appellant continued to spray him with mace. After Robb was able to grasp his gun, appellant ran out of the house with Robb's electric guitar.

Mable Adkins testified that on August 19, 1986, appellant came to her house because he thought her son might be interested in purchasing the electric guitar for $400. While her son was using it on a trial basis, they learned it was stolen property so they informed the police. The next day police charged appellant with robbery.

Appellant argues the evidence is insufficient to support his conviction. He believes that because he had used Robb's personal property as collateral for previous loan transactions and because the guitar was taken to serve the same purpose, he had no criminal intent.

This Court will not reweigh the evidence or Judge the credibility of the witnesses. Polk v. State (1984), Ind., 467 N.E.2d 666. Recently this Court has held that a creditor's attempt to collect by force a secured loan does not negate the criminal intent element of robbery. The law does not sanction the use of self-help as a collection devise. Sheckles v. State (1986), Ind., 501 N.E.2d 1053. We find the evidence is sufficient to sustain his conviction.

Appellant contends the trial court erred by denying his motion for new trial based on newly-discovered evidence. He produced an affidavit of Monte Frederick who, according to appellant's testimony, sat in the car while he visited Robb's home on the night of the offense. The affiant stated that after the incident occurred he saw Robb at a tavern, and Robb told him that he was sorry; his parents made him press charges, and he would pay appellant the money he owed him plus extra.

Relief by a new trial when evidence is newly-discovered is authorized by Ind.R.Tr.P. 59(A)(6). To gain such relief, appellant must prove that: 1) the evidence has been discovered since the trial; 2) it is material and relevant; 3) it is not cumulative; 4) it is not merely impeaching; 5) it is not privileged or incompetent; 6) due diligence was used to discover it in time for trial; 7) the evidence is worthy of credit; 8) it can be produced on a retrial of the case; and 9) and it will probably produce a different result. Wilson v. State (1987), Ind., 511 N.E.2d 1014.

Appellant believes that the new evidence will produce a different result upon retrial because it will directly contradict the victim's testimony. We cannot agree. As we stated above, whether Robb owed appellant money is not relevant because appellant may not defend a robbery charge by alleging that the victim owed him money. Therefore, the affiant's information would not cause a different result upon retrial. The trial court did not err in denying appellant's motion.

Appellant believes he was denied effective assistance of counsel. He contends that his trial counsel's failure to call three witnesses, failure to make a motion to strike certain testimony, and failure to move for a continuance violated his right to effective assistance of counsel.

Appellant must overcome with strong and convincing evidence the presumption of his counsel's competency. Stewart v. State (1988), Ind., 517 N.E.2d 1230. Also, this Court will not speculate about what may have been the most advantageous strategy in a particular case. Isolated poor strategy, inexperience, or bad tactics do not necessarily establish ineffective assistance of counsel. Grigsby v. State (1987), Ind., 503 N.E.2d 394. Appellant also must prove that he was prejudiced by showing that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Geary v. State (1986), Ind., 497 N.E.2d 228.

Appellant states that Monte Frederick, Kathy Langston and Rocky Sumner would have provided their opinions that a robbery did not occur, that appellant was acting in self-defense, and that Robb had told them that appellant did not rob him. He believes that if ...


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