APPEAL FROM THE HENDRICKS SUPERIOR COURT. The Honorable Mark A. Smith, Judge. Cause No. 32D04-1210-FD-1063.
ATTORNEY FOR APPELLANT: PAULA M. SAUER, Danville, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; J.T. WHITEHEAD, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. BAKER, J., and RILEY, J., concur.
VAIDIK, Chief Judge
David Paul Brown appeals his conviction for Class D felony theft. He contends that his trial counsel was ineffective for failing to object to a portion of his videotaped interview with a detective as hearsay and for not tendering a jury instruction on criminal conversion as a lesser-included offense of theft. Although defense counsel should have requested an admonishment regarding the portion of the interview containing the detective's statements, we find
no prejudice in light of the other evidence presented at trial. In addition, we find that defense counsel was not ineffective for not tendering a jury instruction on criminal conversion as a lesser-included offense of theft because counsel employed a reasonable all-or-nothing trial strategy. We therefore affirm the trial court.
Facts and Procedural History
The facts most favorable to the verdict are as follows. Chad Miller and his wife owned a home and approximately five acres of land in Brownsburg, Indiana. The property included an older barn and a newer pole barn that was built in 2009. In 2012 Chad placed an advertisement to rent the property because he and his family were moving temporarily to Florida.
Brown answered the ad in the summer of 2012 and went to look at the property. Chad told Brown that the lease would include the home, the land, and only the older barn because he and his family were going to store the things they were not taking with them to Florida in the pole barn. Chad and Brown eventually agreed on the terms and signed a lease in late June. According to the lease, Brown and his family took possession on July 25, 2012; rent was $1500/month with a security deposit of $1500. Notably, Chad did not give Brown permission or a key to access the pole barn. Chad told Brown that he had not gotten around to cleaning out the old barn, but Brown could " do what [he] want[ed] with that." Tr. p. 194.
Chad flew back from Florida on August 20, 2012, to mow the grass. When he returned, he noticed that the deadbolt to the pole barn was unlocked although it had been locked when he left for Florida. Chad owned a hand truck that he could not locate. Brown told Chad that Chad had left the hand truck outside and that Brown was going to fix it for him. But Chad was certain that he did not leave it outside. At that point, Chad became suspicious and thought that someone had been inside his pole barn. As a precaution, Chad took pictures of his belongings in the pole barn as well as the hour meter on his very expensive Kubota lawn mower. Chad returned to Florida on August 26.
Rent was due September 1, 2012. When Chad had not received rent from Brown on September 5, Chad called him. Chad again called Brown on September 10 when he still had not received rent. Both times, Brown had multiple excuses for why he had not paid rent. When October 1 came and Brown still had not paid rent, Chad returned to Indiana to start the eviction process. Chad called Brown when he arrived in Indiana. Brown suggested that Chad should forgive September's rent because Brown had done some work on the ...