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.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : CARA SCHAEFER WIENEKE GREGORY F. ZOELLER Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana GARY R. ROM Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

TRANELL NASH, ) ) Appellant

- Petitioner , ) ) vs. ) No. 49A02

- 1210

- PC

- 874 ) STATE OF INDIANA, ) ) Appellee

- Respondent

. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila A. Carlisle, Judge Cause No. 49G03

- 0312

- PC

- 224922

August 9, 2013 MEMORANDUM DECISION
- NOT FOR PUBLICATION BARNES, Judge2 Case Summary Tranell Nash appeals the denial of his petition for post

- conviction relief (“PCR petition”), which challenged his conviction for Class A felony attempted robbery. W e affirm.
Issue The sole issue before us is whether the post

- conviction court properly concluded
that Nash did not receive ineffective assistance of trial counsel.
Facts We described the facts of this case in Nash’s direct appeal as follows:

On November 21, 2003, Antoinette Quarles (“Antoinette”) and her brother Anthony Quarles (“Anthony”) were outside the Family Dollar Store at 34 th Street and Moller Road in Indianapolis when they saw two black males run up to a white Pontiac Grand Am in the parking lot. Antoinette and Anthony recognized one of the men as Ronald Brooks (“Brooks”). The second man was later identified as Nash. Brooks and Nash attempted to get into the driver’s side of the white Grand Am, but were prevented from doing so by the driver, W illiam Riley (“Riley”). Nash then entered the Grand Am on the passenger side, and Brooks ran back to a red Mustang. The Grand Am began to move toward 34 th street. Antoinette and Anthony heard a “pop” and Nash “rolled out” of the Grand Am. (Tr. 50, 91.) Nash ran to the red Mustang, which drove away. The Grand Am continued to move forward until it crashed into a dumpster. When Indianapolis police officers arrived, they found Riley in his vehicle, shot in the head. Riley later died as a result of the g unshot wound. On December 19, 2003, Nash was arrested on an unrelated warrant. After his arrest, Nash gave a statement to3 Detective Kenneth Martinez wherein he admitted his involvement in a plan to rob Riley. [ 1 ] On December 24, 2003, the State charged Nash with [felony] murder, attempted robbery and unlawful possession of a firearm by a serious violent felon.
Nash v. State , No. 49A02

- 0504

- CR

- 321, slip op. pp. 2

- 3 (Ind. Ct. App. Nov. 8, 2005),
trans. denied

. Nash’s jury trial was held on February 28

- March 1, 2005. The jury acquitted Nash of felony murder but convicted him of Class A felony attempted robbery; Nash then waived jury trial on the firearm count and the trial court found him guilty of that charge. On direct appeal, Nash challenged the suf ficiency of the evidence supporting his convictions and the fifty

- year sentence he received. We affirmed in all respects. Nash filed a pro se PCR petition on November 21, 2006. On September 12, 2011, hired counsel amended the petition. The sole issue r aised in the amended petition was whether Nash’s trial counsel was ineffective for failing to object to a final jury instruction defining attempted robbery. After conducting a hearing, the post

- conviction court denied the petition on October 1, 2012. Nas h now appeals. Analysis

“ Post

- conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. ” Wilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2013) (citing Ind. Post

– Conviction Rule 1(5) ). A defendant appealing the denial of a PCR petition is appealing from a negative judgment and thus must

1 Nash claimed that Brooks shot Riley.4

establish that the evidence as a whole unmistakably and unerringly points to a conclusion opposite that reached by the post

- conviction court. Id. “ We r eview the post

- conv iction court’ s factual findings for clear error, but do not defer to its conclusions of law. ” Id. 2 A claim of ineffective assistance of trial counsel is a proper post

- conviction argument. Id. To prevail on a claim of ineffective ass istance of counsel, a petitioner
must de monstrate both that his or her counsel’ s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben

– Yisrayl v. State , 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Was hington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied

. An attorney’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms.
French v. State , 778 N.E.2d 816, 824 (Ind. 2 002). To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable pr obability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different.
Id. “A reasonable probability is a p robability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong
will cause the claim to fail. Grinstead v. State , 845 N.E.2d 1027, 1031 (Ind. 2006).
When a defendant claim s ineffective assistance of trial counsel based on failure to object to an allegedly erroneous jury instruction, he or she must establish that if trial

2 As noted by Nash, the post

- conviction court here adopted verbatim the State’s proposed findings and conclusio ns as its own. Our supreme court permits this practice, though it ca n in some cases erode our confi dence “that the findings reflect the considered judgment of the trial court.” Prowell v. State , 741 N.E.2d 704, 708

- 09 (Ind. 2001). This case presents ess entially a pure legal question , which we would review de novo in any event.5

counsel had lodged an objection, the trial court would have had no choice but to sustain
it

. Taylor v. State , 922 N.E.2d 710, 716 (Ind. Ct. App. 2010), trans. denied

. In determining whether a trial court would have been required to sustain an objection to a jury instruction, we keep in mind that instructing a jury generally lies within a trial court’s soun d discretion. Orta v. State , 940 N.E.2d 370, 376 (Ind. Ct. App. 2011) , trans. denied . Factors to consider in reviewing the propriety of a jury instruction include
whether the instruction correctly stated the law; whether there was evidence in the record to support the giving of the instruction; and whether the substance of the instruction was covered by other instructions given by the court. Id. To constitute an abuse of discretion , the jury instructions as a whole must be erroneous and misstate the law or otherwise mislead the jury. O’Connell v. State , 970 N.E.2d 168, 172 (Ind. Ct. App. 2012). “[I]t is bedrock law that a defendant in a criminal case is entitled to have the jury instructed on all the elements of the charged offense.” T homas v. State , 827 N.E.2d 1131, 1134 (Ind. 2005). The trial court gave the following jury instruction regarding attempted robbery, without objection: A person who knowingly or intentionally takes

property from another person or from the presence of another person, by usi ng or threatening the use of force on any person, or by putting any person in fear, commits robbery, a Class C felony. The offense is a Class A felony if it results in serious bodily injury to any person other than the defendant.6 A person attempts to c ommit a robbery, when acting the culpability required for commission of the robbery he engages in conduct that constitutes a substantial step toward commission of the robbery. The crime of attempted robbery is a Class A felony. Before you may convict the Defendant of attempted robbery, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant, Tranell Nash
2. Acting with the culpability required to commit the crime of robbery, which is defined as:
A. The Defe ndant, Tranell Nash;
B. Knowingly or intentionally;
C. Took property, that is: a motor vehicle and/or personal property, from the person or presence of William Riley;
D. By putting William Riley in fear, or by using or threatening the use of force on W illiam Riley
E. And the commission of elements 1 through 4 resulted in serious bodily injury, that is: a gunshot wound of the head to William Riley;
3. Did approach the vehicle of William Riley while William Riley sat inside the vehicle, and confronted William Riley at gunpoint inside said vehicle;
4. Which was conduct constituting a substantial step toward the commission of the crime of robbery. If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of the crime of attempted robbery, a Class A felony, charged in Count II.7

Trial App. pp. 153

- 54. Nash acknowledges that this instruction was pieced together from two pattern
criminal instructions, numbers 2.01 (regarding attempt) and 3.49 (re garding robbery). Although pattern instructions are not always upheld as correct statements of the law, it nevertheless is the preferred practice to give such instructions when possible. Boney v.
State , 880 N.E.2d 279, 294 (Ind. Ct. App. 2008), trans. de nied

. However, Nash contends as put together the instruction misadvised the jury as to the elements of Class A felony attempted robbery, claiming it would have permitted the jury to convict him of that offense if it found only that he had intended to caus e serious bodily injury to Riley, when in order to be convicted of that offense the State had to prove that serious bodily injury actually resulted to Riley. Nash argues that in order to be correct, part 2(E) of the
instruction should instead have been ma de a separate part 5 at the end of the instruction. In order to convict Nash of Class A felony attempt robbery, the State was required to prove that he (1) engaged in conduct that constituted a substantial step toward, (2) the knowing or intentional, (3) taking of property from the person or presence of Riley , (4) by putting him in fear or by using or threatening the use of force on him, (5) which resulted in serious bodily injury to Riley

. See Stokes v. State , 922 N.E.2d 758, 764 (Ind.
Ct. App. 2010) , tr ans. denied . The State was not required to prove any mens rea with respect to the injury Riley sustained. See Wethington v. State , 655 N.E.2d 91, 96 (Ind. Ct. App. 1995) , trans. denied . Additionally, it was not required to prove that Nash, as8

opposed to Brooks, actually shot Riley. See Ballard v. State , 540 N.E.2d 46, 48 (Ind. 1989)

. We agree that the trial court’s attempted robbery instruction could have been more artfully drafted. Placing part 2(E) of the instruction at the end of the instruction as a separate subsection 5 would have more clearly divorced the serious bodily injury requirement for Class A felony attempted robbery from the mens rea required to commit
that offense. T aken as a whole, however, the instruction adequately informed the jury that the State had to prove that Riley actually sustained a serious bodily injury as a result of the attempted robbery, not merely that Nash intended to cause such injury. Despite its awkward location in the instruction, part 2(E) adequately and accurate ly instructed the jury that it could convict Nash of Class A felony attempted robbery only if “the commission of elements 1 through 4 resulted in serious bodily injury . . . .” Trial App. p. 153 (emphasis added). We do not believe the jury would have bee n misled into thinking that it could convict Nash only upon evidence that he intended to cause serious bodily injury to Riley but failed to do so. W e also do not believe the trial court would have been required to sustain an objection to this instruction because it did not constitute an abuse of discretion to give it. Trial counsel’s performance, therefore, did not fall below an objective standard of reasonableness by failing to object to the instruction. Nash also discusses the apparent oddity of the jur y acquitting him of felony
murder

— based on a killing during the course of attempted robbery

— but convicting him of Class A felony attempted robbery resulting in serious bodily injury, i.e. death . Nash9

raised this issue primarily as a means of showing alleg ed prejudice resulting from the attempted robbery jury instruction; because we have found trial counsel’s performance to be objective ly reasonable, we need not resolve the prejudice issue. To the extent Nash argues the inconsistent verdicts point to an in herent flaw in the attempted robbery
instruction that counsel should have objected to , we observe that although Indiana courts previously had the power to review and correct jury verdicts that appeared to be “extremely contradictory and irreconcilable,” th ey no longer do so. Beattie v. State , 924 N.E.2d 643, 648 (Ind. 2010). The Beattie court acknowledged that a jury’s decision to return two apparently logically inconsistent verdicts could mean that the jury misunderstood the instructions, but that “it is more likely that the jury chose to exercise lenity, refusing to find the defendant guilty of one or more additionally charged offenses, even if such charges were adequately proven by the evidence.” Id. The court also recognized the possibility of compro mise jury verdicts but stated that defendants were adequately protected from such verdicts by appellate review of the sufficiency of the
evidence. Id. at 649. Given Beattie , we decline to assume , as Nash seems to do , that juries always act logically in t he verdicts they return, nor do we take the allegedly inconsistent verdicts here as proof that the attempted robbery instruction was fatally
flawed.

Conclusion Nash failed to establish that he received ineffective assistance of trial counsel, and10

we affi rm the post

- conviction court’s denial of his PCR petition.
Affirmed. NAJAM, J., and BAILEY, J., concur.