Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020 Page 1 of 13

MEMORANDUM DECISION

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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

John Pinnow

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dustin Scott Devers,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

March 24, 2020

Court of Appeals Case No.

19A-PC-1893

Appeal from the Vanderburgh 

Circuit Court

The Honorable Kelli E. Fink, 

Magistrate

Trial Court Cause No.

82C01-1805-PC-2954

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1893 | March 24, 2020 Page 2 of 13

Case Summary

[1] Dustin Devers appeals the post-conviction court’s (“PC court”) denial of his 

petition for post-conviction relief (“PCR”). We affirm. 

Issue

[2] Devers raises two issues on appeal, which we consolidate and restate as

whether Devers received ineffective assistance of trial and appellate counsel. 

Facts

[3] The underlying facts of Devers’ conviction for intimidation, a Level 5 felony, 

were set out in this Court’s decision on direct appeal as follows: 

On January 28, 2017, Edward Brandt called 911 and reported 

that Devers was inside an Evansville home, armed with a knife, 

and had threatened the lives of all of the home’s occupants. . . . 

Officer Matthews approached the home and found the interior 

side door open and the screen door closed. As he approached, 

Officer Mat[t]hews could hear a male voice yelling and arguing 

with someone. Once he reached the door, Officer Mat[t]hews 

could see inside the home and saw Devers and a younger 

woman, later identified as Devers’s girlfriend, Lindsay Clark, 

sitting at a kitchen table. An older woman, later identified as 

Devers’s grandmother, Donna Devers (Donna), was standing 

behind Clark. None of the people inside noticed Officer 

Matthews, and he continued to observe the situation unfold as he 

waited for backup to arrive.

Devers continued to argue and shout at Clark while Donna tried 

to calm him down. Devers then grabbed a knife and said to 

Clark, “okay, are you ready for this? I’m going to ram this 

through your head, and I’m going to go away for a long time.” 
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Transcript Vol. 2 at 16. Devers then held the knife up to Clark’s 

throat. At about that time, several backup officers arrived, and 

while the officers were formulating a plan, Devers somehow fell 

to the ground. The officers then entered the home and Officer 

Matthews used his taser to subdue Devers, allowing the other 

officers to take him into custody.

As a result of these events, the State charged Devers with Level 5 

felony intimidation and filed a habitual offender allegation. . . . 

Devers v. State, No. 82A04-1708-CR-1749, slip op. at 1 (Ind. Ct. App. Feb. 28, 

2018). 

[4] The charging information alleged that Devers “did communicate a threat to 

Lindsey Clark, another person, with the intent that Lindsey Clark be placed in 

fear of retaliation for a prior lawful act, to-wit: disagreeing with the defendant; 

and in committing said act the defendant drew or used a deadly weapon, to-wit: 

[a] knife. . . .” Direct Appeal Appellant’s App. Vol. II p. 15. 

[5] At trial, Devers’ theory of the case was that he did not threaten to harm Clark 

but, instead, threatened to harm himself. Devers’ grandmother testified that

Devers “held [a kitchen knife] to his [own] throat.” Direct Appeal Tr. Vol. II p. 

96. 1

 

1 There is a variance in the page numbers because the direct appeal Volume II transcript page numbers start 

on page four. We will use the page numbers on the bottom right of the direct appeal transcript instead of the 

PDF page numbers. 
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[6] In the rebuttal closing argument, the State argued: 

If you believe Officer Matthews’ testimony about what he 

observed that’s corroborated by the 911 call, the defendant is 

guilty. If you believe the defendant’s version of what happened, 

that he held a knife to his throat, with the intent to place Lindsay 

Clark in fear that he might actually kill himself if she didn’t go 

upstairs with him, . . . he’s still guilty. That’s still [i]ntimidation, 

so under either circumstance, he’s guilty as charged, . . . 

Id. at 132-33. After a jury found Devers guilty of intimidation, a Level 5 felony, 

Devers appealed. Devers’ appellate counsel argued prosecutorial misconduct in 

the State’s closing arguments2 and that Devers’ sentence was inappropriate. 

Our Court affirmed Devers’ conviction and sentence. 

[7] On May 21, 2018, Devers filed his PCR petition, which he later amended. The 

amended PCR petition alleged that Devers received ineffective assistance of 

trial and appellate counsel because: (1) trial counsel should have objected to the 

State’s closing argument that threatening to kill oneself constitutes a “threat” 

for purposes of intimidation; (2) trial counsel should have requested a specific 

jury unanimity instruction; and (3) appellate counsel should have argued these 

two points on appeal. 

[8] The PC court held a hearing on March 13, 2019. Devers called both his prior 

trial and appellate counsel to testify. Attorney Barry Blackard represented 

2 The prosecutorial misconduct argument was due to another statement made by the State in closing 

arguments and is not at issue in Devers’ PCR petition. 
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Devers at his jury trial. Attorney Blackard testified his strategy at trial was: (1) 

to argue that Devers did not communicate a threat to Clark; and (2) to create a 

credibility question because neither Clark nor Edward Brandt, who called 911 

to report the crime, testified at trial.3

 Attorney Blackard testified that he studied 

the intimidation statute closely prior to Devers’ trial and was unable to find any 

cases on whether a threat to commit suicide constituted a threat under the 

intimidation statute. 

[9] When Attorney Blackard was questioned about his reason for not objecting to 

the State’s closing argument regarding Devers’ alleged threat to commit suicide, 

Attorney Blackard testified that he does not like to object during closing 

argument if it could draw attention to an issue. Additionally, Attorney 

Blackard testified that he was satisfied with the jury instructions tendered and 

did not deem further instructions to be warranted. 

[10] Attorney Scott Barnhart, who served as Devers’ appellate counsel on direct 

appeal, testified that: (1) he did not raise the issue regarding the State’s 

definition of “threat” in closing arguments because Attorney Blackard did not 

object at trial; and (2) Barnhart does not recall whether he considered raising an 

argument with regard to an additional jury unanimity instruction; however, he 

did not believe he researched cases on this issue. 

3 Clark appeared to “dodge service.” PCR Tr. Vol. II p. 21. 
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[11] On August 1, 2019, the trial court entered findings of fact and conclusions of 

law denying Devers’ PCR petition. Devers now appeals. 

Analysis

[12] Devers appeals from the denial of his PCR petition. Our Supreme Court has 

stated: 

The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence. When appealing from the denial of post-conviction 

relief, the petitioner stands in the position of one appealing from 

a negative judgment. To prevail on appeal from the denial of 

post-conviction relief, a petitioner must show that the evidence as 

a whole leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. [Where, as 

here, a post-conviction court has made findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction 

Rule 1(6), we] do not defer to the post-conviction court’s legal 

conclusions[.] A post-conviction court’s findings and judgment 

will be reversed only upon a showing of clear error – that which 

leaves us with a definite and firm conviction that a mistake has 

been made. 

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and 

citations omitted). As the clearly erroneous standard “is a review for 

sufficiency of evidence, we neither reweigh the evidence nor determine the 

credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014). 

“Rather, we ‘consider only the evidence that supports that judgment and the 

reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl 
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v. State, 738 N.E.2d 253, 258-59 (Ind. 2000), cert. denied, 534 U.S. 1164, 122 S. 

Ct. 1178 (2000)).

[13] Each of Devers’ arguments relates to whether a threat to commit suicide can be 

considered intimidation and whether the issue was properly addressed by 

Devers’ trial and appellate counsel. Pursuant to the version of Indiana Code 

Section 35-45-2-1(a)(2)4 in effect in January 2017, a person commits 

intimidation, a Class A misdemeanor, if the person “communicates a threat to 

another person, with the intent . . . (2) that the other person be placed in fear of 

retaliation for a prior lawful act[.]” The offense becomes a Level 5 felony if 

“while committing it, the person draws or uses a deadly weapon[.]” Ind. Code 

§ 35-45-2-1(b)(2). “Threat” is defined by Indiana Code Section 34-45-2-1(d), in 

relevant part, as: 

“Threat” means an expression, by words or action, of an 

intention to:

(1) unlawfully injure the person threatened or another 

person, or damage property;

(2) unlawfully subject a person to physical confinement or 

restraint;

(3) commit a crime; . . . 

4 We have only cited the portions of the intimidation statute relevant to Devers’ charges. 
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[14] We note that the charging information in this case did not specify the content of 

the threat, i.e., whether Devers’ threat was to harm Clark or himself. The 

statute does include, in the definition of threat, that the threat may be directed 

at someone other than the victim of the intimidation. See, e.g., J.T. v. State, 718 

N.E.2d 1119, 1124 n.6 (Ind. Ct. App. 1999) (“[T]he person placed in fear need 

not fear for her own safety. The statute applies whether the threat is made to 

unlawfully injure the person threatened or another person.”). The parties have

not identified any law, however, that discusses whether threatening to commit 

suicide is a “threat” as defined by statute. With this in mind, we will address

Devers’ arguments.

I. Trial Counsel

[15] Devers argues his trial counsel rendered ineffective assistance (1) for failing to 

object and/or move for a mistrial or admonishment during the State’s closing 

arguments and (2) for failing to request a more specific unanimity instruction

based upon the State’s closing arguments that Devers could be convicted of 

intimidation based upon Devers’ defense. 

[16] To prevail on a claim of ineffective assistance of counsel, a petitioner must 

demonstrate both that: (1) his or her counsel’s performance was deficient, and 

(2) the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. 

State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 

668, 687, 104 S. Ct. 2052, 2064 (1984)), reh’g denied, cert. denied, 534 U.S. 830, 

122 S. Ct. 73 (2001). The failure to satisfy either prong will cause the claim to 

fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective 
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assistance of counsel claims, thus, can be resolved by a prejudice analysis alone. 

Id. To demonstrate prejudice, “the defendant must show that 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.” Weisheit v. 

State, 109 N.E.3d 978, 983 (Ind. 2018) (quoting Strickland, 466 U.S. at 694, 104 

S. Ct. 2052). 

A. Closing Argument

[17] Devers argues that trial counsel should have objected during the State’s closing 

argument after the prosecutor argued “Devers was guilty of intimidation based 

on a factual scenario not covered by the intimidation statute.” Appellant’s Br. 

p. 13. Devers argues that he was prejudiced by this error because this improper 

argument “meant the jury could convict Devers of intimidation even if they 

agreed with the defense[’s] version” of what occurred that night. Id. 

[18] As noted above, Devers has not identified any law that precluded the State’s 

closing argument. This is important because when a claim of ineffective 

assistance is based on counsel’s failure to object, the petitioner must 

demonstrate that, if an objection had been made, the trial court would have had 

no choice but to sustain it. See Cole v. State, 61 N.E.3d 384, 387 (Ind. Ct. App. 

2016), trans. denied. Because there is no law that specifically precludes the 

State’s argument, Devers cannot prove that had his counsel objected, the trial 
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court would have had no option but to sustain the objection.5

 Thus, Devers has 

failed to prove that he was prejudiced by this closing argument. Devers failed 

to show the result of the proceeding would have been different if counsel 

objected to the closing argument. We, therefore, cannot say that the PC court’s 

denial of Devers’ PCR petition is clearly erroneous under these circumstances. 

B. Jury Instruction

[19] Next, Devers argues that the trial counsel’s failure to request a separate jury 

unanimity instruction constituted deficient performance and prejudiced Devers. 

Devers relies upon this Court’s opinion in Castillo v. State, 734 N.E.2d 299 (Ind. 

Ct. App. 2000), summarily affirmed on trans., 741 N.E.2d 1196 (Ind. 2001). In 

Castillo, a confidential informant purchased cocaine from Castillo on two 

separate occasions in two different locations. See Castillo, 734 N.E.2d at 302. 

Castillo was charged with possession of cocaine and dealing in cocaine, Class A 

felonies. The charging information was “unspecific” and only charged that 

Castillo delivered cocaine within 1,000 feet of school property. Id. at 304. In 

closing argument, the State argued that the jury had a choice in convicting 

5 We do not disagree that it is a tough call as to whether a threat to commit suicide constitutes a “threat” by 

statute. Importantly, the use of both “another person” as well as “unlawfully injure” in the intimidation 

statutes gives us pause. See Ind. Code § 34-45-2-1(d). Regardless, even if we were to find the statutory 

definition of “threat” does not encompass a threat to commit suicide, we would not find Devers’ trial counsel 

ineffective on this basis. As the parties acknowledge, they have been unable to find law on this issue, and we 

cannot fault trial counsel for failure to anticipate a possible future clarification of the law. See Appellant’s App. 

Vol. II p. 81. See Woodson v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012) (holding “‘For purposes of 

ineffective assistance of counsel claims, the law requires consideration of legal precedent available to counsel 

at the time of his representation of the accused, and counsel will not be deemed ineffective for not 

anticipating or initiating changes in the law.’”) (quoting Sweeney v. State, 886 N.E.2d 1, 8 (Ind.Ct.App.2008), 

trans. denied). 
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Castillo because the State proved dealing “twice but [the jury] only had to find 

it either happened” at one location or the other. 

[20] Our Court held that the trial court should have instructed the jury on which

dealing crime the defendant committed, writing: 

It is possible, given these facts, that some jurors believed that 

Castillo committed the earlier dealing crime at Garcia’s home 

while other jurors believed that Castillo committed the dealing 

violation at his home later that same day. Consequently, it is 

possible that the jury’s verdict of guilty regarding the charge of 

dealing in cocaine was not unanimous. 

Id. at 304-05.

[21] As the PC court found, Castillo is distinguishable. The conviction in Castillo was 

based on the State’s presentation of evidence regarding two separate events, 

which could have been charged separately, but only one charge was filed. In 

Devers’ case, the State’s evidence leading to Devers’ conviction was based on 

one incident. The defense presented conflicting evidence to which the State 

responded during closing argument. Devers cannot prove prejudice from trial 

counsel’s failure to request a more specific unanimity instruction. Based on the 

foregoing, the PC Court’s conclusion was not clearly erroneous. 

II. Appellate Counsel

[22] Devers argues his appellate counsel rendered ineffective assistance because

appellate counsel did not raise the two previously discussed arguments on 
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appeal, which he contends were “clearly stronger” than the ones appellate 

counsel raised. Appellant’s Br. p. 14. 

[23] “Our standard of review for claims of ineffective assistance of appellate counsel 

is the same as for trial counsel’s ineffective assistance.” Jervis v. State, 28 N.E.3d 

361, 369 (Ind. Ct. App. 2015) (citing Fisher v. State, 810 N.E.2d 674, 676 (Ind. 

2004)), trans. denied. Where a petitioner argues that appellate counsel failed to 

raise an issue on appeal, the “[p]etitioner must demonstrate that: (1) the 

unraised issues are significant and obvious from the face of the record; and (2) 

the unraised issues are ‘clearly stronger’ than the raised issues.” Timberlake v. 

State, 753 N.E.2d 591, 606 (Ind. 2001); see Bieghler v. State, 690 N.E.2d 188, 193 

(Ind. 1997), cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998). 

[24] Based on our analysis above, see supra Section I, Devers has not convinced us 

that these issues are clearly stronger than the issues raised by Attorney Barnhart 

on appeal. We cannot say, therefore, that Devers received ineffective assistance 

of counsel on direct appeal.6

 The PC court’s denial of Devers’ PCR petition 

was not clearly erroneous. 

6 We note that, because Devers cannot prove ineffective assistance of counsel with regard to his direct appeal, 

Devers would not have been able to prove fundamental error on appeal. See Benefield v. State, 945 N.E.2d 

791, 805 (Ind. Ct. App. 2011) (holding “where an appellant has failed to prove ineffective assistance of trial 

counsel, our holding would exclude a finding of fundamental error”). 
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Conclusion

[25] Devers has not met his burden to prove that the PC Court’s denial of his PCR 

petition was clearly erroneous. We affirm.

[26] Affirmed. 

Najam, J., and Vaidik, J., concur.